Gilmore v. RaUway Co., 18 ,Fed. Rep. 866.80, alao, where a servant is injured through the negligence of an employe in providing suitable materialor the latter being authorized or required by hiS employment to discharge this duty. Ia..; Kruger v. Railway Co., (Ind.) 11 N. E. Rep. 957; :t'Ienzingv. Steinway, (N. Y.) 5 N. E. Rep. 449. And the broad l'rinciple is laid down that where tiservant IS invested with control or superior authorIty over another employe, and injUry is incurred by the latter, through the nl?gligent exercise of the authority so conferred, the master IS liable.'l'hom'pson v. Ratlway Co., 14 Fed. Rep. 564,;, Gravelle v. Rallway Co., 10 Fed. Rep. 711; Ross v. Railway Co., 8 Fed. Rep. 544, 5t:lup. Ct. Rep. 184; ,Railway Co. v. Peregoh,(Kan.} 14 Pac. Rep. 7; Mason v. Machine-Works t 28 Fed. Rep. 228. A station agentis neld be a fellow-servant Qf a carpenter employed by'the railroad company in a department wholly disconnected from that in which the agent is working. Palmer v. Railway Co" (Idaho,) 13 Pac. Rep. 425. Anci a common hand engaged in the business of relaying a track under the c,ontrol of a foreman is not in the same employment within the sense of the rule as one who is managing a switch-engine which is used in moving cars and not engaged in ,the work of relaying said track. Garrahy v. Railroad Co., 25 Fed. Rep. 258. At common law, where the master delee;ates to any officer, servant, or agent, high 'or low the performance of any duty which really belongs to the master himself, the latter is not relieved from liability for the negligent acts of such servant. Railroad Co. v. 3 Pac. Rep. 320; Railroad CO. Y. Moore, (Kan.) 1 Pac. Rep. 644. So it is held, Q1rectly contrary to the decision in the case of Smith v. Potter, suprat that an insl?ector of cars is not a fellow-servant of a brakeman. Braun v. Railrol:\a. Co., (Iowa,) 6 N. W. Rep. 5. And when a railroad compl:\ny confers'authority upon one of its employes to take charge and control of a gang of men, in carrying on some particular branch of its business, such servant, in gov.erning and directing the movements of 'the men under his charge with respect to that branch of its' business, is a representative of the company, and not a fellow-seryant'of the men under his control. Railway Co. v. Hawk, (Ill.) ,1.2N. E. Rep. 253; Ratlway Co. v. (Neb.) 20 N, ,W, Rep. 198. See, also, upon the point as to who are fellow-serVants van Wickie v.Railway Co., 82 Fecl; Rep. 278; Theleman v. Moeller, (Iowa;) 84 N. W. Rep. 765; Railroad Co. v. 5 S. W. Rep. 600; Railroa,d Co. v. (Va:) 4 S. E.B,ep. 211. Co., (WIS.) 36 N. W. Rep. 1.2; EasTartans v. .tl.ailroad CO.;J Id. 339; Ewald v. ton v. Railway Co.,..82 .Ired. Rep. 893; Naylor v. Railroad Co., 83 Fed. Rep. 801.
sll6pe 0/ his em.pldynibt at the direction of a co-employe having authority over; hiIn,
CHURCHILL t1. HUDSON.
(Circuit Oourt, E. I!.Mi8so'Uri, E. D. February 24, 1888.)
CaBTESy-NATUlUll OIl' ESTATE DC-RING COVERTURE-ExECUTION-ExEMPTIONS.
Under Rev. St. Mo. §3295, exempting from levy of execution. durinp; coy· erture. the interest of the husband in any right of the wife in any real estate acquired by her before "or after marriage. for his sole debt, the husband's estate. by the curtesy, is exempt. during coverture. from such sale. and the purchaser cannot malUtain an action of ejectment for such.interest aiter the death of the wife.
At Law. Suit in ejectment. P.'1aylor Bryan and M. W: Ruff fQr,plaintiff. A. J. P. Gareache, for .
J., (oraUy.) 14js is a suit in ejectment. The in'the controversy belollged to Mrs. Marie C. Chambers, wife of B. M. :Chambers, in her Issue capable of inheriting was born of that in the year 1874, by virtueof which 1act the husband, B. M. ,Chambers, became entitled toan estate,as'teihmt by curtesy in the lands in question. Thereafter, the upon and sold under and.
CJitmCHILL fl. HUDSON.
by virtue of a judgm(1nt and execution against the husband for his sole debt, the sale tlitking place during the existence of coverture. Mrs. Chambers died in the year 1883, and after her death this suit was brought, the plaintiff. claiming that, notwithstanding the provisions of section 3295 of the Revised Statutes of the state of Missouri, the sale under the judgment and execution against B. M. Chambers was effectual to pass his estate by the curtesy in the lands in question. On the other hand, the defendant contends that the sectioll last referred to prohibited a sale of the husband's curtesy during the existence of coverture. Which of these theories is correct is the sole point for determination. The case has beela very fully and well argued for the plaintiff, and I may say that while the question has been incidentally alluded to in some of the decisions in this state, it has never been authoritatively decided by the state courts. Secti0n 3295 reads as follows: rents, issues, and, products of the real estate of any married woman, and all moneys and obligations arising from the sale of such real. estate,llnd the interest of her husband.in her right. in any real estate which belonged to ber marriage, or which she may have acquired by gift, grant, devise, or inht'ritance during coverture, shall, during coverture, be exempt from attachment or levy of execution for the sole debts of her husband; and no conveyance made during coverture by such husband of such rents, lSSUes. and products. or, oiany interest in sucb real estatt', shall be valid, unless the same by the wife jointly with the husband, and acknowledged be, by her in the .manner now Provided by law in the case of the conveyance by husband and wife of real estate of the wife." . The positioJ!l of plaintiff's counsel on the question involved may be stated as .follows: The statute under consideration is an innovation on .the common law, and, therefore, should be stricUy construed..' At common law, the husband, upon marriage, becomes tenant, by the marital right, oihis wife's lands, and, as such, is entitled to the rents, issues, and products thereQf. ,On the birth of issue capable of inheriting, .he becomes tenant py the curtesy, which, before the death of the wife, is termed "curtesy initiate," and after her death "c\lrtesy consummate." These at common law, are essentially different. The former, by the marital right" was said to be held by ,the hustermed an band in right of the wife; ,the latter, or "tenancy by the curtesy," was an estate said to be held, not "in right ofthe. wife," but in the husband's own right; and, inasmuch as the statute above quoted uses the words ,"in her right," and in only exempts from seizure and .sale those interests of the husband held "in right of the wife," it is argued that the husband's curtesy is not within the terms of the exemption created by section 3295, and therefore may be seized and sold, and that a recoyery in ejectment may be had on such title after the wife's death. The following .cases are cited in support of the various propositions last stated: 2 Bish. Mar. Wom. §§ 17-148, and 1 Bish. Mar. Worn. §§ 531,532; Rop. flusb. & Wife, c.1; Washb. Real Prop. bk. 1, c. 9, § 1; Foster v. Marshall, 22 N. H. 491;' 2 Kent, Comm. 130; Co. Litt. 67aj Bright, Hl1sb.&Wife,113; VaUe:v. Obemhause. 62 Mo. 81; DYer v. Wittler, 89 Mo. 89; Hu,sb. & Wife, 185j and'Mattocks v. Stea"ns, 9 Vt. 326.
It may be conceded that the two estates of the husband in his wife's lands, as above described, exist at common law. It may also be conceded that all the text writers speak of the estate by the marital right as held by the husband "in right of the wife," and of an estate by the curtesy as held by the husband in his own right. Nevertheless, it is my opinion that the legislature did not use the words" interest of the husband in her right," on which the whole argument hinges, in the technical sense now contended for, and for the express purpose, as it is assumed, of leaving the husband's curtesy in his wife's lands open to seizure and sale on execution during coverture. In the first place, the statute is remedial in its character, and should receive a liberal construction to effectuate the purpose of the law-maker. The purpose of the legislaturewas to secure to the wife and family the full enjoyment of her own property; to protect it from seizure by the husband's creditors and from conveyances by the husband himself, which might affect it. With this general purpose iIi view, thelast clause of the section provides that no conveyance made duringcovetture by the husband, "of any interest" in sucp. real estate shall be. valip. unless, by deed', executIJd by the wif< jointly with the )lUsband; The 'husband himself is during coverture, from making a sale or conveyance of his estate by the curtesy, unless with the consent ,of the wife; and it is hardly probable that, having put such a restriction on the husband's power to convey, even his curtesy consummate, on the death of the wife, that the legislature intended to leave this same estate open to seizure and sale on execution during coverture. Viewing the section as a whole, I think the first clause was intended,to be as comprehensive as thelast,-that is to say, creditors are forbidden, during coverture, to seize any interest of the husband in the real estate of the wife, acquired by virtue of the marriage. It is not probable, I think, that in drafting the section, the law;,;maker had in view the particular distinction now invoked between an "estate by the marital right" and an "estate by the curtesy,"iand that the words relied upon by the plaintiff's counsel were used advisedly with reference to that· distinction. On the contrary, it seems far more probable that, in speaking of the husbl>.ud's interest, the words were used, 'as they are oft'ea employed in ordinary conversation, to indicate the source from whence the Interest had been derived. ' Something 'was said in the course of the argument to the effect that the sale of the 'husband's curtesy would not impair the wife's power to fully enjoy her own property during coverture, inasmuch as the purchaser at such sale could only be let into possession when the curtesy became consummate at the wife's death. In other words, it was not claimed that tho husband's estate by the curtesy initiate would '.pass at such sale, :as that would lead to a disturbance of the wife's possession during coverture, and to Rsequestration of the rents and profits which are expressly sale. With reference to this sugexempt by thestatute from gestion it IS only necessary to say I that if plaintitrsconstruction of the statute toe correct, it is easy to foresee several ways in which the wife's right to the uninterrupted and full enjoyment of her property, which the
SmONG V. UNI'rED STATES.
statute aims to secure, might be seriously impaired by subjecting the husband's curtesy to seizure and sale on execution. Upon the whole, I think the law is with the defendant, and accordingly direct a judgment to be entered in her favor.
(Dutrict Court, 8. D· .Alabama' February 21,1888.)
. Pnder Rev. St. U.S. 828, B1':", 1014, a commissioner of the United States circuit court in Alabama ls entitled to a fee for administering the oath to every . criininal complaint made before him, and for filing the same, but not for drawing the complaint.
TESTIMONY TO WRITING,.
&rATES COMlfiS8IONERS-FEES-COJrlPLAIWr-OATH-FILmG ,F-MINT.. .' ' '
e. 8AHE-WARRANTS ANDentitled, under Rev. St. U. S. § 847, to a fee for issuing RETURN. A commissioner is
The Alabama statute requires a committing magistrate to reduce to \'trltirig the teatimouyof witnesses examined before him on preliminary examination, .but the examinationis not illegal by his failure so to do, and the testimony may be proved by any witness who heard it. An examfnation before a United .States commissioner, ilo'reduced to writing by him, is not a depositianllnder Rev. St. U. S. § 847, whidhprescribes aiee for taking and certifying depQBi_ tionlltoftle, thecomJt!.issioner is not entitled to a fee for. such services. a warrant andsubpoona and filing the same when returned, but -DOt for entering the return. . .
Under Rev. St. U.S. §1§'823,947, a commissioner may charge 15 centil a folio for drawing a bail·bond, but iii not entitled to a fee for taking an acknowledgment to the bond, the acknowledgment being una,uthorized by statute.
SAME-OATHB TO WITNESS FEEs-CERTDrWATES OF
Rev. St. U. S. §'§ 828, 854. a,uthorize a commissioner to charge a fee for administering the oath to each witness as to his mileage and attendance, and he is entitled to 15 cents a folio for every certificate given a witness and 011 which he is paid. Rev. St. U. S. 828, 847, authorizing a commissioner to receive docket fees, was repealed by the act of congress of August 4, 1886, (24U. B. St. at 256. 274,) entitled" An act making appropriations to supply deficiencies, . *. * and for other purposes, II where, in a proviso, it is expressly declared that commissioners shall not be entitled to any docket feel.
TO CIRCUIT CLERX.
Under an order of the circuit court, requiring commissioners to forward to the clerk of the United States circuit court a certified copy of the proceedings in every case on their docket, and to make out and forward to the clerk, at the end of each month, a report in duplicate of allcase& instituted before hilIl during the month, a commissioner is entitled to 10 cents a folio for the cop)', and 15 cents a folio for the certificate attached, and for one re1l0rtmade in duplicate 15 cents a folio, and 15 cents for the certificate attached.
At Original action for services. The pllitintiff, StrOItg, who is a commissioner of the United States circuit court, brought this suit to recovt"r a.balance claimed to be due' him on an account· for 'llervices rendered lUI such' commissioner for and on behalf at· the United States. The original account, 8$ presented v.34F.no.1-2
to 'thel pl!6per :aooountingc&ffiool', of department, was for $919.10, and runs from February 18, 1:887, to June.7, 1887.. On this accouJ;ltthere fl.nd. paid by suph:offieer the sum of $296;25. The balance claimed to,be <lue was $622.,86. ' Goo. H. Patrick, for plaintiff. J. D. Burnett, U. S. Dist, Atty.,ior defendant.
TOULMIN, J., (after stating. the facta as above.) This is a suit under the recent act of c6iigreSs, approved March 3, 1887, (24 U. S. St. at Large, 50p..) .. The, a commissioner,of the circuit court of the United states ror the Soutli'ern district of Alabama, and claims that the amount sued for is a balance due him for services rendered. by him as commissioner for and on behalf of .the United States. The acCount sued and is funyset out in the petitio)!. 'It was verified .byoathrand'duly presented to and approved by the circuit court of the United States for the Southern was transmitted to tile 09mpttoller. of the treasury .. ,4. partial. payment .,was,tnadeon the'account"l>uta, large portion of it was disallowed by this,SliitIs to recover the balance, the pay)uent made being aqmitte,d as a credit' .To ,the petition 01' complaint the district attomey the plea of general issue,a general denll'J1 of the allegatioIis of the':dOnipiaint.,.· "The issue befo):'e the court 'the entJi'e's,ccpun'tas$etout ill the pet!·tion, and makes!itdncumbent on the plaintUftoshow to the satisfadion of the court that the services therein charged for. were actually rende,red law. The'ev1:suhmttted :by the pIaintiffin fuipportof claim oonsists of his sworn"&tateImntin Court; 'thepapel'B in the seyer& cases specifically . 'in out in .the pEr .titlon, .aQd, ,O£der, 9f tMolrcUlt· cqlM'ti same. The firstqlleBtion to be oonSidered is-'Whe'ther all the services oharged for were actually rendered, and, secondly, whether all cl,aimed.ili the ,,&pQQunt by l,-wr deemed and no fee 'must be taken except in Cjl&esexpresslr, proby Dig; 6 ;'DciY v: "Officers "such fees as Rev., St. §§823, 17-:64', 1765, &/ilt'fX!.t1.(Jo: v.&;UWO,y Co., 81 Ala. 94 96, 1 South. Rep.. ,214. the services for which com,mis:sioners are ,entitled to teoeive fees,lmaprescribe the fees that shall be ... 'Se'e;R.et·. 847: . Unless we find authority in the account sued on, they; Clinnot1?e allowed. Jerman v. Stewart,12 Fed. Fep. 271, 275. The first item found . in the account, and which is cbarged ip;everYClMle mentioned,in :it,l(ex.Theusu81 mode of proceeding :oep1dll.ei first tin,) is: .before a. magistrate 6r, justice. of the peace in a criminal ptosecutioJ)dn ·this state is .by.a icomplaintiin: ,writing, made b.1IJtM person who institutes tll., pNsecution,.which is' SWOl:n)ioandfiled. ,with ,the· magistrate·
STRONGtI. UNITED STATES.
Hence tlieprodeeding by'complaint before commissioners. But I find no fee allowed for a. complaint by either of the sections of the statutes referred to. .There' is none provided for in terms in section 847, which prescribes commissioner's,feesj and there is no like service performed by clerks of theUnitedlStates courts, and for which they receive compensation. Such clerks have no authority to receive complaints of this character, orin any 'manner to institute or to take cognizance of criminal prosecutions. My,opinidn is that the petitioner is not entitled to a fee for the complaint iu,any case. But the complaint. is swom to before the commissioner, and .is' filed by him, and the statute· provides a fee for him for administering an oath, and for filing every'paper in a cause. I therefore hold that the petitioner, while not entitled to a fee for the complaint, is entitled to a fee Jor adminisfuring the oath to every· complaint made before him, and for filing the same. Butit is urged in argument that if there 'is no fee allowed for the complaint' eo nomine, the commissioner is. required to examine the.complainant, and to reduce his testi,;. monyto writing, and that this then becomes ,a deposition, for··which the commisSioneds entitled:to be p!iid at the rate of 20 cents a folio, under section 847, Rev. St. In the first place, it will be noted that the petitionerdoes not claim in' his account or in his petition any compensation for taking depositions. It is apparent, thlln, that the claimoow set up for this campensation is an after-thought. However, if I should agree with counsel in the suggestion that the petitioner was entitled to compensation for taking depositions. in these criminal proceedings, I would allow anamendIilent of the petition to cover this claim. Section,1014, Rev. St., in:conferring criminal jurisdiction upon commissioners, declares that procaedings. before them .shall be agreeable "to the usual mode of process'"in the state where th,eyare appointed. In this state it is the duty of a committing magistrate to reduce to writing the testimony of witnesses examined before him on preliminary examination"but ifhe neglect the duty, the examination is nevertheless legal and valid, and the testimony given may be proved byauy witness who heard and remembers iti substantia,Uy. Harria v. Swte, 73 Ala.4S)5. The examination reduced to.writing by ,the commissioners is nota deposition in contemplation of seetibn 847, Rev. St., which prescribes, a fee for taking and. certifying depositions to. file. A .deposition is the testimony of a witness, reduced .to writing, and signed as given under oath before a. commissioner, examiner, or other judicial officer, in answer to interrogatories and cross-interrogatories, to be ilied and read as evidence on the trial of a case pending in court. Burrill,Law Dict.; 1 Bouv. Law Diet. 408; Ornch v. State, 63 Ala. 163. Rev. St. §§ 863,866,867, provide for the taking of depositions, and· name, among other officers, commissioners and clerks. of the' courts, as authorized to take and certify them,tofi.1e mcourt. And sections 828 and 847 prescribe the compensationfor in Iron Factary v.:fJorning,7 Blatchf.16. in 1869; .it was held by Mr. Justice NELSON that the word "deposition,r'in the act of 1858, did.not include oral· testimony taken in court or before a master, and .applied ol1ly to a deposition given in on the trial 'of a case
.·... FEDERAL REPORTER.
at Common law, and to one read at the hearing of a suit in equity. The act of 1853 referred to is chapter 16 (relating to fees) in the Revised Statutes, pages 153 to 161, and in which chapter are found sections 828 and 847, prescribe the fees of commissioners and clerks for taking and certifying depositions. I am satisfied that petitioner is not entitled in this suit to any fees for taking depositions. The next fee charged in every case mentioned in the petition, and for which there is no authority, is for entering return of warrant. The petitioner is not entitled to this fee. There is no statute which authorizes it. Section 847 does not provide for it. He has no record on which to enter such return, and the proof shows, as a matter of fact, that he did not enter it. But he is entitled to a fee for issuing warrants, and for filing the same when returned. What I have said in regard to the fee charged for entering return of warrant applies equally totha charge for entering return of subprenas. The petitioner is, however, entitled to a fee for issuing a subprena, and for filing the same when duly returned. It will be observed.thatin some cases I have not allowed him a fee for filing subprenas.This disallowance has only' been in cases where there was no return. .I' The statute authorizes f!. charge for dTawing a bond at 15 cents arolio; Rev. St;§§ 847, 828. On inspection of the bonds submitted in this case I find they contain four folios. I think petitioner should be allowed 15 cents ,a folio for drawing bonds as charged. But the charge for acknowledgment of bonds is unauthorized'by,!aw,and, as the proof shows, by practice. Section 847·, Rev. St., provides for a fee for taking acknowledgments. I am of opinion that this acknowledgment has no reference to a bail-bond. There is no such thing as an acknowledgment to a bond. A commissioner is authorized to take bail; that is, to take security for .the appearance of a party in court,-see Rev. St. § 1014; Code Ala. (1886,) §§ 4406, 4407,-the form of which is simply an acknowledgment or admission by the accused and his sureties of indebtedness to the United States in the sum prescribed, or an agreement to pay to the United States the sum prescribed, unless the accused appear at the proper court, from term to term,or at a particular term, to answer the particular chingepreferred against him. ,This is signed, sealed, and delivered to the officer taking the bail, and, ifapprov:ed, the accused is released from custody. 1 Brick. Dig. 203, § 71. There is no oath re" quired, or fUrther acknowledgment required or, as a matter of fact, taken. A bond duly'signed, with sureties, and with a condition for the appearance of thepllincipal .in a' criminal' case before a' court,accepted by a person authorized to,take bail, is good asa recognizance. In the caseofa formal recognizance the obligation is acknowledged by the parties present mopen court" and entered of record. 2 Bouv. Law, Diet. 828. But in the case of a bond in the nature of a recognizance, where the parties sign theirnames,there is no absolute necessity for the principal being present beforethe person authorized to accept such bond. In the absence of the prindpal, the magistrate might refuse toaiccept the bond, but if he is satisfied that it was duly signed and sealed, and the sureties are sufficient,
STRONG fl. UNITED STATES.
and he accepts the bond, it is valid. U. 8. v. Ebb8, 10 Fed. Rep. 871; Ozeley v. State, 59 Ala. 94. .When bail is taken by commissioners it should be by bond, where the principal and sureties sign their names, as courts of commissioners are not courts of record, authorized to take acknowledgment of recognizances for future appearance before them or some court. Courts of justices of the peace are not courts of record, authorized to take acknowledgment of recognizances for future appearance before them. U. S. v. Harden, 10 Fed. Rep. 805. And, as was said by the court in that case: "The powers and duties of the United States commissioners in criminal matters are not as extensive as those of justices of the peace, but are confined to those which they must necessarily exercise as examining and committing magistrates in enforcing the criminal laws of the United States, and within this limit of jurisdiction they must conform as near as may be to the forms and mode of procedure required by law of justices of the peace.» The commissioner holds no court; he acts as an arresting, exainining, and committing magistrate. Ex parte Perkina, 29 Fed. Rep. 909; U. S. v. Case, 8 Blatchf. 250; U. S. v. Martin, 17 Fed. Rep. 150; U.S. v. .AmbrOBe, 7 Fed. Rep. 554. For form of -bail not in open court, see Code Ala. (1886) § 4420. It is required to be in writing, signed by the defendant and at least two sufficient sureties, and approved by the magistrate or officer taking the same; and this is all that is required. Under the statute of this state a sheriff has authority, and it is his duty, to discharge on bail persons charged by indictment with criminal In the case of a misdemeanor, no order of a judge or court is necessary, but the sheriff fixes the amount of bail, and it is his duty to discharge the accused on sufficient bail being given. In the case of a felony, the court makes an order fixing the amount of bail required, and the sheriff has authority, and it is his duty, to discharge the defendant on his giving bail as required by such order; and a sheriff may discharge an accused on his giving sufficient bail when arrested on a warrant issued by a magistrate. See Code Ala. (1886,) §§ 4275,4291,4408,4409; Hammons v. State. 59 Ala. 164; Ozeley v. State, Id. 94. A sheriff has no authority to take an acknowledgment. If, then, an acknowledgment is essential to bail, how is it that a sheriff can take bail without such acknowledgment? The acknowledgment, for the taking of which a. fee is prescribed, is an act having reference to conveyancing. It is the act of the grantor in going before a competent officer and declaring the instrument to be his act and deed. The officer before whom this declaration is made is considered as taking the acknowledgment, and his certificate on the instrument that such a declaration has been made to him is also .called an acknowledgment. 1 Bouv.Law. Dict. p.50; Worcest. Dict.; Webst. Dict. Nothing of this kind is done or required to be done in taking bail. But there are certain instruments required to be acknowl-edged to entitle them to be recorded, and such instruments, to be valid in certain cases, must be recorded. Rev. St. §§ 4192, 4193. Commissioners of the circuit court are authorized to take such acknowledgments. Rev. St. § 1778. And for taking acknowledgments they are .ntitled to receive a fee. Rev· St. § 847.
I think the cbarge 'for ofwitnessea' excessive in most of the. cases in which it is made. "'The petitioner is entitled to a fee for administering the oath to ,eachwitJiess as to his mileage and attendance, and is entitled to 15 cents a lolio for every order or certificate given: the witness, and on which he is paid. This is what the petitioner calls a "payroll." I find, that in most of the cases in which the· fee for, pay-roll is charged there was but one witness, and I further find· that the certificate. contains less than 150 words.. Rev. St.§§828, 854. In the casealU. S. v.. Wallace, 116U. S. 898, 6. Sup. Ct.'Rep. 408, it was. held that commissioners were entitled to docket fees under the' provisions of Rev. St.§§ 828, 847. This decision was rendered on Jan. uary 18,1886. But by act of congress of August 4, li886,it is provided that they shalI.notbeehtitledto any docket fees. The docket fees claimed in this case accrued in the year 1887, from February to June, inclusive. The contention of the petitioner is, in substance, that the provision referred to is found in the appropriation bill of August 4, 1886, in the proviso to the clause excepting docket fees,and that it excepts them only from the sum'there appropriated for payment of commission. ers; and, further, that inasmuch as. congress did not continue the excep-· tion in. the appropriation bill for the fiscal year 1887, the proviso has no effect on the claim here made. In other words, that payment of docket fees to commissioners was .simply suspended temporaiily by act of August 4, 1886; case of U. S. v. Langston\ 118 U. S. 889, 6 Sup. Ct. Rep. 1185, is cited in support of this proposition. This case is cl,eal"1y distinguishable from U.S. v. Langston. as I understand it. That case was where the clairnimt, Langston, brought suit to recover an; unpaid balance ofsalary claimed to be due him as minister to Hayti. H:appears that on the creati,on of the office of minister to Hayti congress the salary of that officer at 87,500 a year, and from that time until the year 1883 made an annual appropriation of that sum for the salary. By act of July 1,1882, there was appropriated by congress forthe fiscal year ending June 80, 1883, only. $5,000 to pwy the salary of the minister to Hayti, and the same appropriation was made for each ofthe years ending June 30,1884, and June 80,1885. The suit was brought in' the of 1886, to recover the difference between $7,500 a year and 85,000 a year, for the period from June 30, 1882, toJulY11885. Thedetense was that congress, by appropriating a lesser sum, had indicated its purpose to reduce the salary·· The court held that the statute which fixed the annual salary at $7 ,500, without limitation as to time, was not abro-' gated 0118uspended by subsequel'lt enactments appropriating a less amount the salary for a particular year, the same containing no. words which expressly orimpliedly JIlodifiedor repealed it. Congress did not say that· said minister· should, 'receive' no more than $5,000· a year for his salary. The converse oithe propOsition laid down in U. ,'t. :LangBton,BUpra, must then be true: ,statute fixing the salary"af an officer. must' deemed by ta;.8ubsequent enactment appropriating money· to pay for the services of·that officer, and containing words which, by clear implication, repeal the previous law. Now ,does the act of August
STRONG fl. UNITED STA.TES.
4,1886, repeal the earlier statutes under which doc\:etfees were allowed tocommissioners? See 24 U. S. St. at Large, 256, 274. The title of the act· of August 4, 1886, is "An act making appropriations to supply deficienciflS in the appropril!tions for the fiscal year ending June 30, 1886, and for prior years, and for other purposes," showing that the purpose of the ac.t was: not only to make· appropriations to supply deficiencies in the appropriations for the fiscal year ending June 30, 1886, but that there were other objects in view. One of these objects is clearly shown the face of the act,. where it is expressly declared tha,t commissioners shall been-titled to receive fees for certain services therein:specified, but they I5hall not be entitled to any docket fees. The language is "that for issuing any warrant or writ, and for any other necessary service, commissioners may be pa,idthe same compensation as is allowed to clerks ,for. like services, but they shall no.t be entitled to any docket fees." If the wtention Qf congress Was that docket fees were to be excepted from the Bum appropriated in,Jha.t act for the payment of commiiS$ioners, then why was any reference made to their compensation forissuingwarrants, writs" etc.? Why did 110t congress simply say, "provided that no part, of this appropriatio11 shall be applied. to the payment of docket for, the onty effeottobe given fees?" Under the clause under,consideration is retrospective, and that it should apply only in those cases where the commissioners had or would not be pa.id, their fees for rendered during ,theyearendillg June 30, 1886, oQ.t of the regularappropriatiQns for that year! The clause under consi«eration is found in a proviso in the deficiency appropriation ,bill. for 1886. But for the faot that the clause declaring ,that .commiemon,ers s:P!Ul qot be entitled' to any docket fees comes under a provi,so, ,there would be no difficulty at all in determining of congress wae.As agenera1 l1lIe, a proviso is. restrain tl;1e ,enacting clause, and to. exoept something which, would otherwise have been withiJ:! it. : I look on tpis proviso as a legislative cons,truction of the law,--as a legislative geclaration by congress that commissioners sbll11 not be entitled to dockeHees, notwithstanding the decision of the Congre,ss having spoken on the s;ubject, it is the duty supreme of the courts. to give effect its words. What re!1son could congress have for declaring, in effect, that- although .commissioners had theretofore been entitled to dopket. fees, and although not be entitled to they shall be entitled to them hereafter, yet they have thelllpaid out of this sIllall appropriation? Suoh, however, is. the ,How unreasonable and unjust would such a construction of the statute·make the action of congress. Is it not more reasonable andjust to hold that congress intended to make the law to, and to oP!i\rateprospectively on, all commissioners alike,-toput them all on the same footing, by cutting oft' all docket fees froOl that It ml;ty be that the statute under consideration is. framed in aq inartificia! there is want of perspicuity or in it., When .this is the C&IW, courts are often. required' to look less a,t the letter Or words ()f the statute than atthlil reason and spirit of the.lo,w in to
24 arrive at the will of the law-ma;ker. It is' well known that there had been much controversy over the claim set up by commissioners to docket fees; they contending for them, and the comptroller of the treasury denying theirright to them. :A.t1ast the matter was brought into the courts, and the supreme court decided thatcommissioriers were entitled to such fees. In a few months thereafter congress passed the act of August 4, 1886, in whi()hit makes a deficiency appropriation to pay commisioners' fees, and for other purposes, and in which act it takes occasion to say that commissioners shall not bllentitled to any docket fees. Is there any othenlonolusion than that the reason and spirit of that aot was to Ir1Elet the decision of the supreme court, and to finally settle by a legislative declaration the question in controversy? Again, it is contended that ·inasI?J.uch as congress did notconlinue the proviso,--or exception, as it is called,-in the appropriation bill for the year ending June 30, 1887, the act (jf August 4, 1886, had the1!lffectonly to suspend section 828 temporarily. It seems to me the fabtthat the proviSion denying the payment of docket fees to.commissionerswasomitted from the appropriation bill for the year ending June 30, 1887, isa 'very strong argument to show that the intention of congress was to abrogate the statute allowingsuch fees by adopting the provision on that subject to be found in the act of August 4, 1:886, which we have been considering. And this argument is strengthened by tbefactthat both acts were passed on the same day, August 4, 1886. See 24 St. at Large, 222,256 ·. Docket fees having been abolished by one act passed on that day, there was· no reason for another act to' the same effect, on the same day. I cannot adopt the view contended for by the petitioner unless I eliminate from the act the words, "they shall not be entitled to any docket fees," which congress has inserted;' My duty is to give them effect. Not only do these words, in the light of the circumstances under which they were used, make the intention of congress manifest, but that intention is plainly repugnant to theformer statutes,-sections 828, 847,-as construed by the supreme court. My opinion, therefore, is!that the later statute repealed the earlier, although there are no express words of repeal employed in it; and I am constrained to hold that the petitioner is not entitled to recover any docket fees in this suit. U. S. v. ]i'ishcr, 109 U.S. 143, 3 Sup. Ct. Rep. 154; U. S.v. Mitchell, 109 U. S. 146, 3 Sup. Qt. Rep. 151. Since the trlalin this case the charge for docket entries has been aban'doned and withdrawn. By an order of the circuit court in this district commissioners are re'quired to forward to the clerk Of the United States circuit court a transenpt or certified copy of the proceedings in every case on their docket. For this copy I tllink they are entitled to be paid at the rate of 10 cents :a.<folio, and for the certificate to it· 15 cents a folio. I find that such copy averages two folios, and that-thecharge made by the petitioner for the certificate is 'correct. Rev. St; §§828, 847. The same order'(jf the circuit court requires a commissioner to make out and forward to the clerk of the court, at the end of each month, a report in duplicate of all CRses instituted or examined during':the month. The petitioner has
WILLIAMS 11. UNITED STATES.
charged a fee for a monthly report in each case. This is not correct. He is not required to make a separate monthly report in each case, but he is required to make, at the end of each month, one report of all cases had during the particular month. For this report made in duplicate he is entitled to 15 cents a folio, and for the certificate attached thereto 15 cents. In conclusion I find that the fees to which petitioner is entitled on the account sued on amount in the aggregate to $477.25. But he admits having been paid on this account the sum of $296.25. Judgment will therefore be entered in his favor for the sum of $181, being the balance found to be due on the account. I have caretully and critically examined the account and the papers therewith submitted in evidence in this cause, and, after mature consideration, have prepared an opinion of unusual lengLh. I could hardly have done less and covered all the points presented in the cause, which I desired to do because of their importance to the United States, to the petitioner, and to all others of like interest with the petitioner.
(District Court, D. Maryland.
February 24, 1888.)
U. S. §§ 2012,
ELECTIONS AND VOTERS-SUPERVISORS-COMPENSA'l'ION-REV. ST.
The compensation of a supervisor of elections appointed under section 2012 is. by section 2031, limited to $50, notwithstanding he may, in tpe performance of his duties, have necessarily served more than 10 days. (Eyllabu8 by the Court.)
At hlw. John A. Williams brings this action against the United States, under the act of March 3,1887, to recover compensation beyond the sum allowed for services as supervisor of elections in the city of Baltimore. John E. Bennett, for petitioner. Thomaa G. Hayes and A. Stirling Pennington, for the United States.
MORRIS, J. This is a suit by a supervisor of elections, appointed under section 2012 of the United States Revised Statutes, to recover from the United States compensation beyond and in addition to the sum of $50, upon the ground that he was necessarily employed in the performance of his duties for a longer period than 10 days. The United States, by its demurrer, admits the statement of the tiff that he was duly appointed and qualified and served as supervisor of elections in the city of Baltimore for 19 days in the months of September and October, 1886, but denies that his service for 19 days gives the plaintiff a cause of action against the United States for more than the