PREsTON V. UNItED STATES.:
PRESTON. V. UNITED STATES.
w: D. Mis8ouri,
W. D. October Term, 1888.)
COURTS-FEDERAL COURTS-CLAIMS AGAINST UNITED STATES-REJECTION BY COMPTROLLER.' ,
Under act Congo March 8,1887, forbidding district courts to entertain claims against the government, "which have heretofore been rejected ()r reported on adversely by any court, department, or commission authorized to hear and determine the same, " the court must dismiss a claim rejected by the comptroller of the treasury. Following Bli88 v. U, 8.,84 Fed., Rep. 781; Rand v. U. S., 36 Fed. Rep. 671.
SAME-COURT OFFICERS-MESSENGER AND CRIER.
There is no incompatability"between the offices of crier and messenger of the district and circuit .courts; and under the rule inU, S. v. Saunders,,120 U. S. 126, 7 Sup. Ct. Rep; .467, the same person may perform the duties receive the salaries of both.
At Law. Action by James H. Preston for compensation for services rendered. Qua"leB & Guffin, for plaintiff. Mi E. BenWn, for the United States.
PHILIPS, J. This is an action to recover compensation for plaintiff's. services as crier of the district colirt and circuit court of the United States for the Western district of Missouri The petition alleges that the plaintiff, under proper appointment, performed 'serYices as crier of said courts, on certain days between the 2d day of January, 1886, and the tiling of this petition on the 23d day of May, 1888; and that the aggregate of his per diem amounts to $438, for which he asksjudgmenti The the facts to be substantially as follows: That from the 2d day of January, 1886, up to the time of the institution of this suit, the plaintiff performed the duties in said courtS of messenger, from which h.e received from the government a per diem compensation of two dollars; that during this same period, under appointment by the court, he also performed the duties of crier of said courts, during their sessions from January 2, 1886, up to the; 23d. day of May, 1888. The answer alleges, and the court finds the facts to be, that for the services thus rendered as crier the plaintiff was paid by the government up to February 8, 1886, since which time the comptroller of the treasury department has rejected the claims for such compensation on the ground that the plaintiff was not entitled to compensation for the two services of messenger and crier. As to so much of the claim as precedes the 3d day of March, 1887, thtJ court holds that it has not jurisdiction over the subject-matter, as by the proviso of secHon 1 of the act of March 3, 1887, conferring jurisdiction on this court over such actions, the court cannot hear and determine such claims 'I which have heretofore been rejected or reported on adversely by any court, department, or commission authorized to hear and determine the same." It has been expressly held by Judge BREWER in Bliss v. U. S., 34 Fed. Rep. 781,followed by WEBB, J" in Rand v. U. 8.,36 Fed". Rell. 671, that the comptroller of the treasury having,charge of the adjustment of v.37F.no.9-27
accounts against the government, a rejection of an account by him is, in contemplation of said pJ.'Qviso"a rejection by a department authorized to hear and determine the same. It being conceded at the hearing that so much of the plaintiff's claim as precedes the 3d day of March, 1887, was prestmted to and rejeGtedby .said comptroller, it follows this court has no jurisdiction "to hear and determine the same." evidence that.since the 3d day ofMarch; 1887, The court finds from to the 22d :day of1\1:ay, f88.8, the plaintiff,.under appointment by the courts, basrendere<f service as fluch crier for 88 days. The only remaining question; therefore, to be determined is, whether or not the lawentitles the plaintiff to compensationforsuch services. I think this ques'tionja fullyanswCiJred by the supreme court in U. S. v. Saunder8, 120 U. S.126,7 Sup. Ot.Rep. 467,. in which it is held that a person who holds two distihct';compatiDle offices or positions of employment, and performs the duties of each, may lawfully receive the salary of each. If there, be n,o inc.oIPpatibility betw!len the respective duties of the two 9ffi<;leS or employments, and the functions of each are separate and distinct, he is en- , titled to recover two compensations. The evid!lnce iIJ. this ,case shows, what the observation of the court !JonfirmlJ, that 'the two. duties of messenger and crier, performed by the plaintiff, are not only compatible, but, alth6Ugh'perfollll1ed contemporaneously, were distinct in. their character, and,devolved :UPQllc the plaintiff a work. His duties. for instance, as :laessengerof the court, attached and were performed on the same day, priOllto the sitting ,ofthe.court, often during its sitting, as also during' the noon recess of the court,and 'for the residue of the day after the adjournment of the sitting of the court, The one duty Wlj,8 in nowise connected with or in continuation of the other. No reason is therefore ap.parent wh.Y'the plaintiff'should not receive. the compensation allowed by law for the performanoeof this double semce, when there was no con- ' flict of'duty, nor any incompatibility between the office of crier and the employment of messenger. ,By section 715, Rev. St., U. S., such crier is allowed the sum of $2 per day. ' The court therefore finds that the plaintiff is entitled to recover for:the period of 88 days between the 3d day. of March, 188'1, and the 23d day of May, 1888, 82 per day, making in'the aggregate 8176. Judgment accordingly·
(tlWeuit Oowrt. lY. IJ; Miohigan, 8. D. January 29,1889.)
1, :Sn:CIII'IO ,PERFORM,ANCE-FltAtmUIiicNT
.. ,: Upon a .p,ill th!3 .speci:tlc pefformp,llce,ofa contracqo erect for defend· >' ants a creamery buildmg, and fl,lrUish creamery supplIes, it appeared that complainantll had represented that·'an association, which was the largest sub· .:. t.o ,the to:be organiz",dby defendanwfor carrying on. the buslDess, was an independent corporation, doing business with a largenumber; of creameries; and 'furnishing special facilities for handlin'g and marketing creamery products, through which defendants would obtain an advanced price ;