by the breach of the condition of the same until the whole penalty has been recovered; and the proceedings shall always be as directed in the preceding section,"-that is to say, such injured person may bring suit on the bond notwithstanding the judgment already had on it, in his own name, for his sale use, and may recover such damages as shall be legally assessed, "such suits to continue until the whole penalty is recovered," -that is, until the sum total of the recoveries equals the penalty. If the suits "shall continue until the whole penalty is recovered" it is clear that the whole penalty is not recovered in the first suit. In the case of U. S. v. Curtis, 100 U. S. 119, action was brought on the bond of a paymaster, and breach assigned, was the default in $3,320.83. and interest. Verdict and judgment were for the breach, and not for the penalty. In New York it il;l said that on an official bon'd judgment shall be for the damages, and not for the penalty. O'Connor v. Such, 9 Bosw. 318; Haward v. Parley, 18 Abb. Pro 260. In South Carolina, in courts whose civil jurisdiction is limited to $100 and under, ajudgment can be had on the condition of a bond if the judgment be under $100, although the penalty greatly exceed that amount. Code, § 74: Construing these sections, therefore, I am of tbe opinion that a person aggrieved by tbe action of the marshal may sue on bis bond in bis own name, or tbe suit may be in the name of tbe United States. If the suit be in the name of the United States, the judgment is for the penalty; and, as the United States holds tbe bond for the protection of all con.eerned, it may be that the judgment may remain as security for any person aggrieved, who may come in under it, and suggest his interest. This would be the procedure under the practice in this state. Treasurers V. Bates, 2 Bailey, 362; Norton v. MuUigan, 4 Strob. 356. If, however, the suit be brought in the name of a private person, it is for his sale use. His recovery is the damages legally assessed, and for tbis he issues his execution. Let plaintiff have judgment against each surety in the Bum of $175.43, with interest from the 25th day of February, 1887, and costs.
STANTON'll. UNITED STATES.
(Olrcuit Court, D. Connecticut. January 14, 1889.
DISTRICT ATTORNEYS-CLAIMS-JURISDICTION OF COURT.
Under act Congo March 8, 1887, authorizing suits to be brought against theUnited t;tates to recover items in the account of a district attorney suspended or disallowed by the accounting officer, and providing that the courts "herein mentioned" shall not have jurisdiction "to hear and determine other claima which have heretofore been rejected or reported on adversely by any court, department, or commission authorized to hear and determine the same," a district attorney is not concluded by the rejection of items in his bill by thedepartment having charge of the auditin'g of the accounts of district at· torneys. Under Rev. St. U. S. § 824, providing for the compensation of district attor· neys for the examination before a jUdge or commissioner of persons charged
ON COMMISSIONER BEFORE ARREST.
STANTON V. UNITED STATES.
with crime. the district attorney is entitled to his "per diem" for time neces· sarily spent in the investigation of an offense in co-operation with the com· missioner before the arrest is actually made, and witnesses are sworn.
SAME-ATTENDANCE ON ARRAIGNMENT
The district attorney is entitled to cbmpensation for time actually and Ilee· essarily spent upon the arraignment before the commissioner, though no witnesses are examined, the magistrate having adjourned the hearing on mo· tion of the accused. Compensation is recoverable for the actual examination of the accused upon an application to take the poor. convict's oath.
4. IS. 6.
SAME-ApPLICATION OF ACCUSED TO TAKE INSOLVENT'S OATH.
Under section 824, a district attorney who does two days' work in one is not entitled to a double fee. An order remitting a criminal case from the circuit court to the district conrt, OD motion of the district attorney, is not a judgment within tlie mean· ing of section 824, prescribing the fee of the district attorney in such C8ses.
For services resulting in a discontinuance before a commissioner the district attorney is to be paid under the "per diem" clause of section 824, and not un· der the clause prescribing the fee for discontinuances. Where the accused is bound over by the commissioner to the district court, and the commissioner's record is sent to that court and docketed. a fee is recoverable for a discontinuance, although no information has been filed. Where the commissioner's record and bail-bond are returned to court, and an indictment is drawn, but the grand jury find not a true bill, a fee is reo coverable for a discontinuance,
SAME---COMPROMISE OF CIVIL AOTION.
For services rendered by a district attorney in securing a compromise of a civil suit brought in favor of the United States, whereby the suit is dismissed without trial, he is only entitled to the fee of five dollars, allowed for a discontinuance. Under section 846, providing that where the ministerial officers of the United States shall incur extraordinary expense in executing the laws thereof, the payment of which is Dot specifically provided for, the president is authorized to allow the payment thereof, etc., an action will not lie for money paid out by a district attorney to prevent the escape of an alleged criminal, the allowance Dot having been made by the president. Under section 888. providing that it shall be the duty of every district attorney to institute the proper proceedings for any fines. penalties. and for· feitures which may have been incurred by reason of the violation of the internal revenue law, unless he shall decide that the ends of justice do not require such proceedings, in which case he shall make report, etc., and that for the expenses incurred and services rendered in all such cases he shall receive, etc., the district attorney is not entitled to recover for services unless prosecutions have been commenced. He is entitled to recover for clerk hire and for necessary expenses of the office. such as telegrams and printing and stationery.
SAME-INTERNAL REVENUE CAUSES.
SAME-COSTS OF AUDITING ACCOUNT.
The court clerk's fees for recording the orders in connection with the audit· ing of the accounts of a district attorney should be paid directly to the clerk by the Kovernment.
At Law. Lewis E. StanWn, in pro. per.
Goo. G. Gill, U. S. Dist. Atty.
SlirPMAN;':J. This is a petition ofLe'Yis E. Stll.nton, Esq., late di&,o trict attorney of the United States'for.thisdistrict,which was brought to this of the provisions of. the act of March 3, ·1887, entitled "An act to provide for the bringing of suits against the government of the Unitecl.Stlltes," to recover those items in his accounts as district attorney which ,had! been: suspended or disallowed by the accounting officers, or which, although allowed, have :not been paid. Said petition was duly served in accordance \yith the provisions ofthe section: of said act. The present district attorney of the United States for this district .appeared, filed an answer, which denied an indebtedness by the United states to. the Petitioper,and upon: the trial defende!! the interests of the government in said suit. . .. . The first question in the cause is one of law, in regard to the jurisdiction aUhe court, and arises upl,ln the language oftheproviso in the first section of said act: "Provided, however, that notl1ing in this section shall be construed as giving to either of the courts herein mentioned ju" risdiction · ** * to hear· Rnd determine other claims which have beretoforebeen or reported on adversely by any court, department, or commission authorized to hear and determine the same." The position oithe United States is that some of the items contained in the plaintiff's bill of particulars were, prior to .March 3, 1887; rejected by the department which had charge of the auditing of the accounts of trict attorneys; and that, as to those items, no other court is empowered by the statute to adjudicl;tte. The position is sustained by the opinion of Judge BREWER in Bliss v. U. S.,34 Fed. Rep. 7$1, which is hesitatingly followed by Judge WEBB in Randv. U. S., 36 Fed. Rep. 671.' Not'withstanding the authority in: its favor, I am not satisfied that this statwas rnerelyprospective in respect to disallowed claims, but, on the contrary, think· that this part of the proviso intended only to exclude from eitherM the courts Cl8.1tnS",hich had beena:djlidicated by a court, department, or commission authorized to determine between the parties. A large. part of the j nrisdiction. of the court of claims, before the enactment of this statute, consisted in the consideration of the validity of clllipls which hadbeen l'ejectedhy the accounting officers of the. goyernment; and, among others, the decisions of the comptroller of the treasury were the SUbjects of revision. Section 191, Rev. St. If the constrUction which is nowcohwllded for is correct,this irnpprtant of the business and duty of the court of .claims would, be abridged. not tha intention ofcongresstoditninish, but, on the contrary, to enlarge, the jurisdiction of that court.. By statute a department is 80meauthorized to hear and finally determine in regard to specified of .claiplsi: for: e:x;aniple, tl;te,departmentQf the interior,and the comlll1ssioner ofIndian affairs, are made final judges of certain claims; and it is an adjudication under this statutory authority by which complete power to pass upon the amount or validity of a claim bad been given to a department or commissioner that referl30ce is had in the pro-
STANTON ". UNITED STATES.
viso'uIldet:eonsiderlitibd> The words II bear and dete1'mme" used three times inthefin:itsection.·· They are used twicetb define the po-ivet of thecburts to w'hic:ttnew is given. Once' theyl,t're used to expresslhe power of or commission which had 'claim. The words are used each 'time in the that is, they refer to judicial determination after a hearing and weighing of testimony Oil both sides,and not to an ex parte accounting. :E' am well'l'l.ware tha:t the word "heretofore" seems, under this constructibtI, ito be of little value, ·but I think that the proviso 'was inserted out of abundant ca'utio:t1, lest subjects which had theretofore been dicated by an authorized tribunal could be reconsidered under this· stat· ute. If reliance 'is to be placed upon the opinion of the conference cbmmittee, 9.pqn whose report this proviso was inserted, it referred to claims which were res adjudicata upori being heard and determined before any department, court, 01' commission, and not to claims 'which had theteto· fore been rejected in the ordinary process of presentation and audit; Anulilber 'of the items' in the plaintiff's bill, which were presented prior to March 8, 1887, were 'not rejected j no definite acti6n was taken j they were suspended for further inquiry or statement. Some ofthem were disallowed, which seems to be equivalent to rejected. The items which weredisaIlowed or rejected by the to March 3, 1887, and which I allow, amount to $125. The suspendeditetns which I allow iunount to 8349.50jand the admitted, but unpaid, items amount to $15.40. :'. The facts ,which are found to exist in regard to the several items in the bill of particulars !lre as follows: ' The plaiptiff'Whs district attorney for this district from January 2, 1885, to April 2; 1888. .. No. 1. The items in the half-yearly account of June 30, 1885, which were disallowed, are: .
Meeoh. on January 17 Prescott. ", " 19 Meech, " ·Feb. 18 Roath. "Jan. 29 Prescott. " . " 14 " .i .. " " Richmond,·.. March ,30 " ". .. .." Mayer,. 'i' April 28 -each at $5.0Q. and judgment in lJ. S. 'D. Thpmpson. circuit court, April term, $10.UO. Total ,
ComnUssioner in U. S. , '"Attendance , . . . ' . . .. .. .." " " " "" " ", " ".. " .. " .."
.The first Presc6tt'claim is not pressed. The Meech and Roath items, amounting to $15, arise ulJontbe .. Meech and Roath were defaultingcll-shiers j'il two Norwich banks" an'd the cases wereimportlmt. The days'thlit ate charged for were days necessarily spent in Norwich, atthe request of the parties in interest, in the fl-ctllal e:itnminationand investigation of the cases, the office Of the but b,efore the arrest was made; and no sworn testiI#6ny of witnesses was before the' commissionet on'the days' wHich were' disullowed·. The action of the accounting officer is based upon' Q' 'construction of section
824, which refuses Ifper diems" before commissioners, unless after arrest, and unless sworn testimony is actually taken before. the commissioner. This construction of. that portion of the section which relates to the sub. ject of preliminary examination of criminal cases, is, in my opinion, incorrect. The language is: "For examination by a. district attorney, before a judge or commissioner, of persons charged with crime, five dollars a day for the time necessarily,employed." It frequently happens, especially in important cases, that much time is necessarily and exclusively spent by the attorney in the investigation, preparation, and examination of the cases before t,he arrest is actually made, and before witnesses are sworn. The result of this investigation is submitted to the commissioner, before whom complaint if! made, before arrest. The Roath and Meech items are of that class. This general question was considered by Attorney General Black in 9 Op. Atty. Gen. 170, who came to the conclusion that there was no distinction betweetl an investigation or examination before the warrant is issued, and that which comes before the committal, and that examination of the person charged includes an investigation of the case. Confining myself to the facts in this case, I think that the district attorney is entitled to a fee of five dollars per day for the time necessarily employed in consultation or co-operation with the commissioner, in the preliminary proceedings of a criminal prosecution before the actual arrest. The second Meech item was for a day necessarily spent in wich with the commissioner, upon the arrest of the accused upon a new information. These items are allowed. The item of five dollars for services in Prescott's case, Oil January 14th, is unobjectionable. The services were rendered and the day was spent before the commissioner in New Haven, after .arrest, when the accused was arraigned . The Richmond and Mayer items involve the question whether, for actual services before commissioners, and ror actual services not provided for by docket fee, before the circuit or district court, on the same day, a double fee of five lars can be allowed. 1 think that the intention of congress in section 824 was to give only five dollars for the work of one day, which may not be provided for by docket fees; and if the attorney performs two days' work in one he is. entitled to five dollars only. The item of $10 for judgment fee'll. C. B. Thompson rests upon the following facts: Thompson was arrested in Vermont and was bound over to the circuit court. In this district, all criminal cases over which the district court has jurisdiction are tried in that court. Upon motion, the case was remitted to the district court. Although the affirmative ruling upon the motion was a final disposition of the case, so· far as the circuit court was concerned, I do not think it could be'called a judgment in the sehse in which the word is used in the fee-bill, and which is a sentence or order pronounced on hearing of the points in issue, and determining the rights of the parties. This motion was a part of the ordinary routine business, for the performance of which the II per diem" of five dollars is given. Upon the items in No.1, $20 are allowed. No.2. The claimed and unpaid items in the half-yearly account ing December 31, 1885, are as follows:
II. UNITED STATES.
· $ 15 40 20 00 10000 250
Travel and attendance before conrt, in case of ,Robert .Jeffrey, Attendance before Com'r, also charged before circnitconrt, Services in case '0. E. Wllliams, administrator... Expenses in case of D. C. Rodman. -
The Jeffrey charge was suspended, but was afterwards allowed by the accounting officer, and is due for services actually rendered, and mileage, which was traveled, but has never been paid. The $20 rest upon the question whicb is stated and decided in the Richmond and Mayer items, and are disallowed. The claim for $100 in the Williams case depenus upon the following facts: A civil suit in favor of the UnftedStates was brought against Ephraim Williams, Jr., as administrator ofhis father's estate. The questions in the case made a settlement desirable, in the opinion of the attordey. It remained in court some time, and by his vigorous effort an equitable compromise was made without trial, and the was paid to the government. For his spemoney upon the cial services the item is charged. That the fee of five dollars which iF allowed for a discontinuance is very inadequate compensation for tht' services rendered, and for the time which was spent, is manifest; but compensation is controlled and governed by the statutes, and there is no clause in the fee-bill, and no Election of the statutes, which authorizes fee for services in a civil suit in which the payment or a larger or the United States is plaintiff. The rule of law is correctly announced by Attorney General Black in 9 Op. Atty. Gen. 146: "When a duty is enjoined upon him (the district attorney) by the law 01 his office, and not merely by the request of a department, he is bound to.perform it, and take as compensation' what the law gives him. * * * All civil suits in which the United States are a party of record fall within this principle. In them D(l charge for extra services can legally be allowed, though it be true that some of' them l'equire an amount of labor and skill. for Which the compensation allOWed by the is altogether inadequate." The law is also thus correctly summarized in the opinion of Attorney ' General Bates, 10 Op. Atty. Gen. 489: "A district attorney is entitled to receive for the prosecution of any civil action in which the United States is concerned, before a federal court of his district, only the fee provided by the act, "-now embodied in section 824. To the charge of $2.50, which was paid to the judge of probate for copies or record which were ordered by the solicitor of the treasury, and which related to the estate of Daniel C. Rodman, a surety upon a collector's bond, QO objection is made, but it is unpaid. Upon the items . in No.2, $17.90 are allowed. No.3. Fpo/1 the account for the first half year of 1886, the attorney eight per diems before commissioners, of five dollars each, which were suspended, and are still unpaid, viz.: January 23d, B. C. .Thompson; February 6th, Charles Bunnell; February 25th, D. H. Holcomb; February 28th, Manna Alderman; February 29th, George J. v.37F.no.6-17
March 10th, Colemf1D, Nathan Rose. All these days were and necessarily upon arraignment before the <:qp1,missioner, after arrest. trpon the Buspended days no witnesses wert}, examined, for the reason that the magistrate adjourned the hearing, for reasons E:atisfactory to himself, upon motion of the accused.. The attorney was present t!.ponea.ch of the days, for the purpose of the examinations. The Hem of $40.' is allowed, and of $2 for unpaid and due mileage'. The attorney also chtims $105, the same being admitted itetns of this account, which the'ahcounting officer suspended, because an examiner of the department of justice had reported, in 1886, that upon 21 court days in 1885, which had been paid for in the account for that no busitless was done. "Thie .examiner made a subsequent report that the days were business days. The suspension was continued that the attorney might show that upon these days' he was tlecel'sarily employed in court upon the busiI1Css of the government. The suspension was upon the ground that if the attorney could not explain satisfactorily the required facts in regard to the days in 1885, the sum of $105 should be set off against a like Sum, which was admitted to:b'e due upon the ao<l011nf for.the first half of1886. No notice of set-off or counter-claim is madeor pleaded.. If it is not necessary to give notice of such a defense, the facts in the case are substantially identical with those hereafter'stated in regard to item d of No.4. In the last half of 1885, the attorney necessarily attended 21 days in a court of the United States, in the bUSIness of the UriitedStates;less those hereinafter deducted by his agreement. Upon No.' 3,'$147 are allowed, less the amount hereinafter agreed by the attorneyt(j·be deducted for absences in August, 1885. 'No.4. Upon the account fdr the half.year ending December 31,1886, the attorneyc1ail'n8 : .
(afFor ,before at . $ 7() (k) For 4pe): dIems before S.V. Bartram, ber2/'th; U. S. ·. U. S. v. Plumb. July 14th; U. S. 'D. Penard. Octobet 6th. · · · 20 (F) 4 charges for discontipuances in districtcourt.· ;.20 (It) 39 court per diems in circuit and district courts. 195
,in regard tqitcm a are as follows: These were criminal vjol&tipn of the internllJ revenuellcts, upon which. propositions for compromise were made,and forwarded to thecomllilissioner of internal· revenue. To save expense to the accused, who must pay the costs, and for sitilplicity of prQcedure,' the accused were not bOund over, but the cases were adjourned by the commissioner; the accused beillg upon bail, until ail acceptai:lce.br rejection of the o:ffersofcompromise,' They were all ac-.' cepted, and by direction of'the comlnissiorier of internal revenue the cases were qiscontinued, and for the services' a' discontihuance fee. fs charged. The judgment and discontinuance fees inse()tion 824 referjn my opinion, to fees for services in the circuit or districtcourts. All services before commissioners are payable under the p(rI' di.em· clause. For the services which resuited'in a discontinuance before the commissioner up6n hisdo'cket, otthewithdrawal of the case, I seeno reason why
fJ. UNITED STATES.
per diem fee()f five,dollars.is ,D,ot justly charge31ble;fQr the reasons which have been ..heretofQre given. The service is a,neeessary one, is usefpI,and is in the .interest of economy and efficiency. Upon an amendment of the bill of particulars, the sum of $70 will be allowed. ": The charge in item b is made. The days which are charged were necessarily spent in actual attendance before commissioners, upon the arraignment after arrest, in the examination of the accused. .1;'he Willis case,;vflls, theacttlal examination of the accused upon an aPplica.c tion to take the poor convict's oath under section 1042 of the Revised Statutes. He was supposed to be possessed of property. The fee is payable uridersection824. "The charge in item.c is properly made. In four cases before commissioners the' accused were bound over to the district court, the commissioner's record, with the bail-bonds, were serit to the court, and were docketed. The cases 'were then discontinued, and the discontinuance fees were not regarded by the acco\.mting officer as payable, because no information,had been filed. When the commissioner's record has been returned to and docketed in the district cOlirt, the case is in that conrt, and remains there until it is disposed of by affirmative action. Thflaccused then appears, and can ask for a reduction of the bond; or the haUL bond can be called Or forfeited. This is in accordance with the uniform usage of the district court in this district, and is in harmony with 'the \lsage of the state courts of this state. ' The charge initem d is one upon which the action of the accounting officers has not been uniform. Sometimes a like charge is allowed. The suspension was fO,t information as to whether the attorney was actually present on tholle days upon business of the United States; Hartford, the place where the oourt was held, being the place of the attorney'sresidence. The facts are as follows. In this district the terms of the courts, as a rule, continue until the succeeding term commences. The circuit court, as a 'court of equity, is always open, and the district court is open for the performance of the business appropriate to that court; but no days tlre entered upon the minutes of the' clerk as" court days " unless business ,is actually done, or, having been regularly assigned, is postponed. .' Fifty-seven court days are entered upon the minutes during this half year, and the attorney was in necessary attendance in court upon the bnsiness of the United States for 53 separate days, perhaps more; but the c.uatom of the present attorney, who lives-in Hartford, has been to take the record of the clerk as the days for which the charge is to be made, and not to keep a' separate account of each day, and of the business which he transacted,-a custom which is in the interest of economy, and of convenience to the court. The business of the office and the requirements:bf the government are of that character that frequent attendl;lllce in court,at the clerk's office, or at the judge's chamberS, is necessary, for which the per diem compensation is allowed, and without which the offi.ce is of. little pecuniary value. Upon No.4, $305 are allowed, less the amount hereinafter agreed by the attorney to be deducted for absence in August, 1886.
No.5. For account for quarter ending June 30, 1887, $325. Of this amount $320 has been allowed, but has not been paid. One "court day" of five dollars was suspended, but should be paid for reasons heretofore stated. Upon No.5, $325 are allowed. No.6. Upon quarterly account for quarter ending September 30, 1887, the attorney claims: For twenty-three court "per diems" during the quarter.. - $115 00 For attendance before a commissioner in U. S. '0. Sparks. August 12th, and U; S. '0. Roemer, August 15th, 10 00 The "per diems" are due for 23 days of necessary attendance in court on the business of the United States, and are allowed for the reasons heretofore stated. There isno assistant attorney in this district, and in the absence of the plaintiff from the state, upon his summer vacation, he employed counsel to represent him in the two named cases; who attended before the commissioner. The attorney paid them $10. The two items are allowed, amounting to $125. No.7. Upon quarterly account for quarter ending March 31, 1888, the attorney claims: Discontinuance of U. S. Thirty-one court days,
Two per diems in U. S.
W'. C. Griswold,. ";;'; ".
5 00 155 00
The days in the matter of Griswold were necessarily spent before the commissioner after arrest, and upon arraignment, and the fees should be allowed. In U. S. v. Parker the commissioner's record was returned to court, with the bail-bond, and an indictment was drawn, but the grand jury found not a true bill. This action did not discharge the accused, for a new indictment could have been presented to another grand jury. In order to discharge the accused and his bondsmen, the case must be discontinued. The fee was properly charged. The 31 court days rest upon the same grounds which have been previously stated, the attorney having necessarily attended 31 days in a court of the United States on the business of the United States. Upon No.7, $170 are allowed. No.8. To cash paid O. D. Seymonr for services in the arrest of R. S. Hicks, 832.83. Had the accounting officers understood the natnre of this bill it would undoubtedly have been approved, and anthority have been obtained for its payment; for the bill is an eminently jnst one. The special expenses were incurred, and were specially taken, under a widely entertained apprehension that the accused would escape, and in consequence of It determination that the laws should be executed. They were entered into upon careful consideration and consultation with those who were in a situation to give advice. If the accused had escaped, the attorney would have been reproached. But, under section 846-the only section which relates to the subject--it is not a debt for which an action will lie. The clause of the section which relates to extra expenses of this sort provides "that where ,the ministerial officers of the United States have or shall incur extraordinary expense in executing the laws thereof, the payment of which is not specifically provided for, the president of
STANTON f1. UNITED STATES.
the United States is authorized to allow-the payment thereof under the special taxation of the district or circuit court of the district in which the said services have been or shall be rendered, to be paid from the appropriation for defraying the expenses of the judiciary." The president alone is vested with power to allow the payment of this class of expenses, after they have been specially taxed. If he does not think that the . allowance is proper, or does not authorize the payment, they cannot be paid, and with his decision the courts cannot, in my opinion, interfere. No.9. To cash paid for telegrams for the United States from September 2.5, 1885, to March 31, 1888, $38.37. Copies of these telegrams were kept, and were produced and examined. They are the ordinary and necessary communications in regard to criminal business, were a part of the necessary expenses of the office, and were necessarily sent in the course of official business. The amount of the bill is allowed. No. 10. Clerk hire from January 2, 1885, to April 2, 1888, approved by attorney general. but rejected by comptroller, $699. In view of the large amount of clerical work in the way of reports which is required by the departments. and of the amount of business which the attorney was called upon to perform in the collection of internal revenue, at the in·. stance of the collector of revenue, the assistance of clerks was important and necessary, and was obtained. The amount olaimed, and whieh was paid by the attorney, being about $216 per annum, is a moderate one, and should be allowed. This item, with the next one, is payable under section 835. No. 11. Cash paid from January 2, 1885, to April 2, 1888, on account of printing and stationery of the United States, $64.55. The bill was a part of the necessary expenses of the office. The articles therein mentioned were furnished and were paid for, and the bill is allowed. No. 12. Fees for examination. and report to the secretary of the treasury, under section 838, of 37 "No Pros." customs cases, and for like services to commissioner of internal revenue, in 192 "No Pros." internal revenue cases, at $5 each, $1,145. These were cases which were r&' ported to the attorney by the proper officers in this district, were exam· ined, and, for adequate reasons, were settled without suit, or were not prosecuted. The attorney claims, under section 838, that a proper and adequate fee for his services should be paid. The secretary of the treasury rejected the claim. after its presentation in the year 1888, upon the ground that payment thereof is unauthorized by the section, wJ;l.ich is as follows: . "It shall be the duty of every district attorney to whom any collector of customs or of internal revenue shall report, according to law, any case in which any fine, penalty, or forfeiture has been incurred in the district of such attorney for the violation of any law of the United States relating to the revenue. to cause the proper proceedings to be commenced and prosecnted without delay for the fines, penalties, and forfeitures in such case provided, unless upon inquiry and examination he shall decide that such proceedings cannot' probably be sustained, or that the ends of public justice do not reqUire that such proceedings sho.uld be instituted, in which case he shall report the facts In customs cases to the secretary of the tre811ury, and in intel"nal· revenue
cases to the comtnissionet' of internal- revenue, for their'djI'Elc,ti6n.. And for in all such cases the district atthe expenses inc;Q.rred and torney shallteceive and be paid from the treasury sucb sum.as the secretary of the treasury shall deem just and reasonable; 'upon the certificate of the jUdge before whom '·such cases are tried or disposed of." has. been consideration by the treasury This department, and. the secretary followed the practice since 1873. If section 838 was the,' only one which now relates, or has related, to this class of cases. the construction of the attorney, and for which he has the authority of U. S. v. Bliss, 23 Fed. Rep. 26, would seem to be the correct one; but, as pointed out by Attorney General Brewster, in his opinion in 31 Int. Rev. Rec. 70, section 838 was an amendment, in 1873, of , the seventh section of the act of ,July18, 1866, now re-enacted as section 3085 of the Revised Statutes, which is as follows: '.'District attorneys, upon receiving the report of a collector, shall cause suit and prosecution to be commenced and prosecuted without delay for the fines and personal penalties by law in such case provided, unless upon inquiry and examination they shall decide that a conviction cannot probably be obtained, or that the ends of public justice do not require that a suit or prosecution should be instituted, in which case they shall report the facts to the spcretary of the treasury forbis direction. For expenses incurred and services rendered in prosecutions for such fines and personal penalties, they shall receive such allowance as the secretary of the treasury shall deem just and reasonable, upon the certificate of the judge before whom such prosecution was had." It is obvious that the payment provided by section 3085 is only where prosecutions have been actually commenced, and that section 838 was an enlargement of the pre-existing statute, so as to make its provisions applicable to internal revenue cases also. Viewed in this historical light, the provisions in the two sections in regard to payment for sen-ices are of the same character; and, notwithstanding the phraseology of section 838 is somewhat different from the pre-existing statute, I am of opinion tha.t it was not the intention of congress to authorize payment for these services, unless prosecutions had been commenced. The opinions of Attorney Generals Brewster and Garland are to the same effect. No. 13. ·The attorney also presents a bill of the clerk of the district court for original and duplicate orders passed in ltppfoval of the attorney's accounts in accordance with the statute of February 22, 1875. (18 St, 333,) since July, 1886,-$26.90. The clerk's fees on similar orders wer.e paid prior to July, 1886, by the government, but since that date have been disallowed, as chargeable only to the attorney. The statute requires that the. ofPcer shall prove, in open court, his services, and that the court shaUt4ereulJon cause to be entered of record an order approving or disapprovingtheacoount. The clerk's fees for these orders are in'accordance with the fee-bill. .By the statute the judge of court is and the Clerk is compelled to enter the auditmade an records.. For these auditing services,so far as tbey are provided for in the fee-bill, the government, which requires the serviCeil to be rendered, is indebted to the clerk. The officers whose accounts are audited are l'l.otrequired by the statute to pay the expenses of the
UNITEDBTATES tI. GUION.
audit. The bill should be paid· directly by the government to the clerk. It is not properly chargeable to the attorney, and therefore should here disallowed. Upon the foregoing bill, as allowed, $255 have been paid since suit was br()ught,· and the attorney agrees that $45 should. be deducted for absences in August, 1885, and August, 1886. Let judgment be entered in favor of the petitioner for the sum of $1,611,82, and the taxable costs under the statute of March 3, 1887. ·
UNITED,. STATES '11. GUION.,
(Diltrict Court, .E. 1). MiB8ouri, .E. D. January 14,
ELECTIONS AND VOTBRs-lNrnm>ATION OF VOTER.
Where the evidence tends 'to show that defendant was at tbe pons for the , purpose of scrutinizing thevoie cast, and it does not appear tbathe acted with evil motive or intent'in challenging a vote, a conviction cannot be had, under Rev. St. U.s. § 5511, for "inducing a voter by threat or intimidation to refuse to vote...
Indictment for Intimidation of Voter. On demurrer to evidence. ' The indictment in this case was framed under section 5511, Rev. St. U. S., and charged that defendant unlawfully, by threats and intimidation, induced one Samuel Butler, a duly-qualified voter, to refuse to vote at an election, held for a representative in congress of the United States, in the city of St. Louis, on November 6, 1888. At the of the government's case a demurrer was interposed to the testimony. Thomas P. Bashaw, U. S. Atty. Thomas,B. Harvey, fOl'defendant.
THAYER,J., (Many.) T6 make out the offense defined by section 5511, Rev. St. U. S., "of inducing a voter by threat or intimidation,to refuse to vote," it must appear, either directly or by fair inferenceftt;>m the proof, that the accused acted with evil motive or intent. That is to say, it should appear that, he threatened or a person whom he knew or had reason to suppose was a duly-qualified voter. 'If a. citizen at the polls challenges the right of another citizen to vote, and does so in good faith, believing that the party challenged is not a'qualified voter, no offense is committed under the statute, although the challenge is accompanied with a threat to have the party arrested and prosecuted if he in voting... In the present instance, all the, evidence on behalf of the' governrpent,in 'my opinion, tends to show that tp.eaecused acted in good faith,with\,ut evil intent. It teilds to show that the accused was at the polls for the purpose ofscriltinizing the votec.ast, and that he believed that Bu.tler was not a qualified voter, and tha.t' he challenged his vote solely inconsequence of such belief. Ifany fact has been proven'tending to show that· the accused· acted mala fide, that 'is to