POINIER II. UNITED STATES.
discharge of the duties of chief supervisor he performs services analogous to or the same as those of commissioner, for which no specified compensation is provided in the title 26, he must lookior his compensation to the statute relating to the fees of the commissio,ner. It is always to be presumed that when special duties are imposed on an officer of the government, when such officer is wholly dependent on the fees of his office, and has no fixed salary, gratuitous service is not to be implied. See Gratiot v. U. S., 15 Pet. 336. Let us examine the charges that have been disallowed. First. Recording and indexing the appointments of 1,008 supervisors. It is manifest, in order to discharge his duties in connection with supervisors; instructing them from time to tilllC, obtaining information from and of them, that the chief supervisor must have in his office a list of supervisors who have been appointed, and the evidence of their appointments. Besides this,eachsupervisormust,be put in possession of Bome certificate of his appointment, and such certificate should berecorded by the chief supervisor, ano, when filed, they should be indexed. Each of these papers forms two folios. Under section 2031 he gets for .entering and indexing every record of his office 15 cents per folio, which is charged here, and is allowed. Seccmd. Drawing .instrl;1ctions to supervisors,. 16 folios, at 15 cents, $2.40; copies for 1,008 supervisors, each 16 folios, at 10 cents. The duty of instructing supervisors, responsible and important as it is, is devolved on the chief supervisor. It is not simply a clerical act of the .character of those mentioned in section 2031, but one more analogous in. its character. For to his duties as commissioner, and more like duties as commissioner he is allowed 15 cents per folio for preparing papers, and 10 cents per folio for each copy of the paper so prehim have this allowance. Third. Administering oaths to supervisors, 26, at 10 cents each. In the case of Gayer v. U·. S. I allowed a charge like this. Upon re.examination I cannot find any provision of law which puts upon the ,government the cost for swearing supervisors. The supervisors necessa!l'ily take, an oath, but, as they are. not compelled to serve, their act is voluntary. The first, comptroller of'the treasury has good reason for not, allowi!1gthis charge. The expense of taking the oath must be paid by tl:\e supervisors thema:elves. This item is disallowed. Fourth. Per diem for attends nee on court. The oircuit court was open hy order of the circuit judge, under section 2011, on 5th day of October. Section 2026 required the chief supervisor to attend upon the .opening of court. He did attend, and day by day discharged his duties as required by law. The provision limiting the pay of supervisors .cannot apply to him. His duties are entirely distinct from, and in no He way resemhle, the duties of supervisors. He is not a -directs and controls supervisors. Here, then, we have a commissioner .of this court appointed chief supervisor, and eligible to his office only 'becauseh,4il.isacqmmissioner called upon to perform llertain duties. The first of these was to attend in person the pf the circuit court
provided for by stattite, and de die in diem present business to that court, and furnish information for its This requires his personal pres· before the court. No provislon is :made for his compensation for these duties in section 2031, and no specific provision ismade in sec· non 847,but section 847 issuing anywarrant or writ, and for any other service, the ctltnmissioner shall recei'te the-same compensntion as is allowed to service." An ingenious argument wag;made on: behalf of the defendant that the words "fat any other service" meant issuing any paper requiring service; this word being used in its:hatrowest technical sehse.Butthe compensation is for service. pTheclerk never serves writ!Hmd warrants and such like papers. The I words must be taken in their natural meaning, and this conveys an idea oFtha performance Of duties similar to those performed by a clerk. Section 828 gives to a clei"k, lfor traveling from the office of the derk where he is required to resid\:l'ttYthe place of holding any court required by law to be held',five cents a mile for going and five cents a mile for returning, and five dollars II day fur attendance on cOurt while actually in session. The plaintiff JVas required to keep his office in Spartanburg. When lfe 'was delegltted as chief supervisor it became necessary that he should tra:vel from his office in Spartanburg to Charleston, where court wa,sheld aceording·tolaw. Let him have his mileage and per dwm.' F'ifth. Items of bill ofstlttionery, printed blanks of oaths, $4.75; printed certificitte of service;' Si.oo; blank application ior supervisors. · Section 2026 directs the chief supervisor to prepare and furnish all neeessary books, forms, and inst11ictionl:!; As the number of supervisors is very gl'eat, the "chief supervisOr "saves time, trouble, and expense by printing. He shMldbe reimburSed for printing all necessary blanks emanating from :his office, made necessary for the proper' dischm:ge of Among are the oaths to be taken by ,their duties by su theeu,pervisors 'in>order accuracy and uniformity, and for the same reasOn the fdrmofcertificli.te'they mustnse in order to obtain pay. also,the ardEll's made by theicotitt appointing supervisors should be printed, and thEf disbursements for printing them be allowed to the chief tlupervisor. The'samenecessiWdoes not exist foi' application of super2026 does not it his duty to prepare these applications. See Gil/ger v. U. S. ,supra.. The item for these applications is ·not allowro;,-$5.50. ' ,'Sixth. Recording and indexing 105 informations,2 folios each, at 15 !'cents. Section 2026 .requires the chief supervisor to furnish to the court information in respectto supervisors aplJOinted by the court, and :also it requires'certain information fromsuperv'is'ors of elections them.He is also allowed for filing and caring for every return, report, "record, dOenment,Jand other 10 cents. It appears in this case were papers of a. character required by law. It .was his'dntyt6 fiiefhem, and:'heiil entitled to compensation for them. Let this item 'be An 'order will be taken cil:rryilig out the con. 'elusions of' thiS opinion;
SDiIS V. SCHULT.
Sms' 11. SCHULT
(Circwr.t CO'U1't, E. D. M'i8souri, E.,D. October 81, 1889.)
WitneSses residing in the district, who attend court in obedience to a subprena, are entitled to mileage fees for the whole distance trave,led in going to and returning from the place where the court is held, thou,h it exceeds 100 miles. Where tbecase,has been continued at plaintiff's request and at his costsJ age fees to be paid defendants' witnesses. Who have, been subprenaed, ana have come more than 100 miles,willo.otbe taxed against plaintl1f Until the trial of the cause, and )1ntil the necessity Qf the witJ;1ellll68' personal attendance, in lieu lng their depositions, may bedeterminelL
SbB--TAXATION Oll' CoSTS.,
At Law. Motion to taX witness fees. Hough, Overall Judson, for plaintiff. Alexander ¥artin, for defendants. '
J. This case wasrecently continued application ot tbe and at bis cost. Tbree witnesses appeared in obedience to reside inPemiscot county, in this district, at a distance ,qf 320 mUes frQm St. Louill, Mo,., by the route traveled to reach .. , A fourth witJless in obediElnce t,o suli>poona who resides'in: Mississippi county, also in this who was cOmpelled to travel 178 miles to reach the place ofbolding court, in St. Louis, Mo. A motion is filed to compel the clerk to tax tbe mileage fees and per diem of these witnesses against tbeplaintiff, at wbose instance tbe continuance was granted. The motion is resisted on tbe ground that, as the witnesses resided more than 100 miles from the place of holding court, mileage fees are not allowable for a distanoe exceeding 100 miles. The witnesses in question, having been duly subpoonaed, and having reported in &bedienoe to such prooess, are clearly entitled to mileage fees for the whole distance necessarily traveled in going to and returning from plac;:e ofholding court; lUtliough it exceeds 100 miles; The"'clrcuit judge of this oircuit so beldin Halmes v. Sheridan; see note In reThomas, ,1, Dill. 421. The rUle sOii.nnounced is reasonable. Witnesses who reo side 'in the district, no matter at what distance from the place orboldiIlg court, who obey its prooess and report; ought not to becompelled ,to pay'their own traveling fees. That woulQ be offering an inducement legal process. If it is wrong to issue, subpcenas to parHes for Jvitnesses residing nlOl'e than 100 miles from the, plaoe of holding ·court, the costs thus wrongfully incurred should b(3 taxed against the "party who occasions them. Witnesses should not bear the burden of a compeUingtheir personal atfault corornittedhy a party in tendance. The clerk will accordingly allow the witnesses who have claimed mileage in this case for:the full distance. traveled in coming from and in returning to their several 'homes. ," Whether-,the .fees so allowed should be taxed against the plaintift' as 8 , paTt"'Of itbec6Sts oftlrecontinuaJjce, Or
moned them, as costs unnecessarily and wrongfully incurred, is a different question. In the case of Manujacturing Co. v. Salier8, decided by Judge DILLOror)nthis circuit., reported in 6 Cent. Law J., at page 82, the learned jUdge held that in some cases it might be proper to secure the personal attendance of witnesses who resided in the district, but at a greater distance than 100 miles from the place of trial. In that case general direction, was clerk not to tax mileage fees of witnesses against the losing party for a distance in excess of 100 miles, with.out a special order of court. l'hatdirection has ever since been observed . in this district, and will stillbe,observed. As the present case has not yet been tried, and as the court not fully advised of the character of the issues to be tried, or of the propriety of the' defendants' action in suing out a subprena to secure personal attendance of those witnesses in lieu of taking their depositioi18,aJ;l order not be made at present taxing the fees in question as a part of the costs of the continuance. Such an order may appear to be proper after the final hearing of the cause, 4epending, of course, upon the character of .the facts that .the witnessesin question were caIled.to establish. ..' The motion is sustained in as it calls upon the clerk to tax and allow in favor of the witnesses the mileage fees and per diem claimed by 'It is overruled, t>rejudice, in so far ll,S it calls upon the clerk at this time to tax the in question against the plaintiff as a part of the costs of the continuance.
UNITED STATES fl. WALLACE.
(DtBtrict Oourt, E. D. South. Oa'l'ot1.na.
October 18, 1889.)
UNITED STATES MARSHAL-ILLEGAL FEES-INDIOTMENT. ,
Rev. St. U. S. § 5488, makes it criminal for any person to make or cause to be made, or present or cause to be presented, for payment or approval, to any person or officer lU the. government service, any claim against the government, knowing the same to be false or llctitious, or to cause to be made or used any false receipt, voucher, account, affidavit, etc., knowing the same to be false, with intent to defraudJ etc. An indictment charged that defendant, a deputy marshal, having a warrant lor the arrest of a violator of the United States statutes, served the same, and, 10rthe purpose 61 obtaining approval and payment of a 1alse and llctitious claim against the government, oaused to:be made a false and fictitious account, affidavit, and voucher as to the number of miles traveled by him, and as to the employment of a guard in' suob servioe, and as to the number of meals furnished the prisoner. The account was set out in full, as were also the guard's receipt for fees, and. the receipt of the persQn furnishing the meals. The account was alleged to be false, and the fictitious items were desil!"nated specifically, and It was alleged that defendant knew them to be false. that, the specifio acts constituting the offense of making the false account were set out with particularity. Theomisslon to allege the name of any officer to whom the account was to be presented is a fatal defect to such an indictment.
S. SAME., ' , . . ,It:ljlinliuffioleIit to allege that an account due from the United States to C., the . ' state", marshal, was presented to C., as the could not auditor pay a c1aIin against the government, due to himself. ,., , ,
UNITED STATES ". WALLACE.
On Demurrer to Indictment. Abiel Lathrop, U. S. Dist. Atty., and H. A. De SaU88Ure, Asst. U. S. Dist. Atty. J. P. K. Bryan, for defendant. SIMONTON, J. The defendant is indicted for violating 5438. Rev. St. 'l'he indictment contains two counts. The first is for making and false receipts, vouchers, accounts, and so forth, for the purpose of obtaining payment or approval of a false, fictitious, and fraudulent claim a.gainst the United States. The second is for presenting a false, fictitious, and fraudulent claim for payment to G. 1. Cunningham. marshal of the United States for the district of South Carolina. The defendant demurs to the indictment. This necessitates an examination of the language of the indictment. The indictment is brought under the first clauses of section 5438, which are in these words: "Sec. 5438. Every person who makes or causes to be made, or presents or causes to be presented. for payment or approval. to or by any person or officer in the civil, military, or naval service of the United States, any claim lIponor against the government of the United States, or any department or officer thereof, knowing sllch claim to be false, fictitious, or fraudulent, or Who, for the purpose of obtaining or aiding to obtain the payment or approval of sllcb claim. makes, uses, or causes to be made or used, any false bill, receipt, voucher, roll, account, claim, certificate, affidavit, or deposition, knowmg the same to contain any fraudulent or fictitious statement or entry." The first count, after reciting that the defendant, a deputy-marshal, was intrusted with the service of a warrant against one John Brooks, charged with violating section 5438, Rev. St., issued by a commissioner of this court, served said warrant, and arrested Brooks, and for the purpose of obtaining approval and payment of a false, fictitious, and fraudulent claim against the government of the United States, did then and there make and cause to be made a certain false, fictitious, and fraudulent accolint, affidavit, certificate, and voucher as to the number of miles traveled by him, the said L. W. Wallace, deputy-marshal, as aforesaid; and as to the employment of one J. H. Williamson as guard over the said John Brooks; and as to the number of miles traveled by the said L. W. Wallace, deputy-marshal, his guard, and said Brooks, in transporting Brooks from the alleged place of arreMt at Elloree, Orangeburg county, to Charleston, 8. C., and as to two meals furnished said Brooks, and to the employment of a guard over Brooks; setting out the account in full, headed: "United States of America to G. 1. Cunningham, United States Marshal, by Deputy L. W. Wallace, Dr.,"accompanied by copy of receipt of J. H.Williamson, a guard, and of .John Lewis for meals, with an affidavit beforeJ. Wesley Smi1h, United States commissioner, ofthe truth of the items. The count goes on to charge the fliisity of the account, and specifying the items, concluding with the allegation that defendant knew that. they were false. The second count charges that the defendant, a deputy-marshal, did present for payment to George 1. Cunningham, he being an officer in the civil service of the United States,-that is, being. United States marshal in and for the district of South Carolina, -a claim vAOF.no.3-10