says he thinks that Lloyd Jones was in possession when his mother owned· it. He says tha·t they (he and his mother) sometimes staid there two or three weeks at'a tim.e; that they were there threedr four times. His recollection is'somewhat indefinite. But it is clear that the family always continued to claim the property as their own. Living in Pennsylvania, and not able in those times to derive much income from the property, they may have let it lie unused for many years. There is no evidence on this point. But this did not deprive them of their right to it, or of their legal possession as against all trespassers. Certainly the Board of Proprietors of East New Jersey had, least of all, any right to disturb them, or to interject a party into [email protected]
BAEDER ". JENNINGS.
had passed ·away since their execution. There was then no method by which they could be authenticated except that which was adopted, namely, to prove in the most indubitable manQ-er that they came from the society's archives, the proper custody to which they belonged, and to place them on the public records. They not only came from the proper custody:, but they were conformable to the possession and claim of the property to which they referred. Their existence and validity were fully recognized by the proprietors of East Jersey themselves in the Elizabethtown bill and the schedules annexed. thereto; and no stronger act of possession could have been exercised over the shares than was exercised by the West Jersey Society in that transaction. This is conclusive, and renders further discussion unnecessary. I am entirely satisfied that the records ot theee deeds were properly received in evidence. The act of 1743, referred· to. by counsel, did not stand in the way. of recording these deeds. The first section of that act declared that certain acknowledgments or proofe theretofore taken should becleemed sufficient to authorize the deeds to be recorded. It did not declare that no other proof should be insufficient. The seconq section clearly did not refer to such a casaas that presellted by the deeds in question. I have not ovedooked, the fact that the 400ds referred to were .not recorded in the East .Tersey office, but in that of West Jersey. If this were a question between those claiming under these deeds and subsequent purohaser-s without nQtj@, the want of registry in East Jersey might be for purchasers would have a right to say, a,material "We are only bound to know what was onreoord in:East Jersey." But the question isa verydi1ferenton;e. , It relates to the existence of the deeds,-totheinquiry; wMther there ever were such de.eds. That fact may be deteI:mined, in proper cases, even by oraltestimony, if tbe witnesses hay-e seen the deeds. ,plOW their contents, andthe signaturesof the parties. The proof of ancient deeds, especially ifofsuch great!1ntiquity as those in question, may be made in various ways. If conform.able to the history and possession of the property to which they relate, slight evidence will suffice. In .the. present case, according to the recorded proof, the deeds came from the proper custody in 1754, and were authenticated in the only way in which they could then .be authtmticated,and were then recorded in West Jersey, where tbe property to which they related was principally situated; and all this a hundr.ed and thirty years ago, and the property always claimed an<t possessed in conformity thereto, and their validity admitteq by parties adversely interested.. Under such circumstancEls itseerns to me that the records\Ycre prima facie proof of the former existence of the deeds. The next materiltlobje(::tion. raised to the plaintitrs derivation of title is the non-production of the conveyance by John Chapman of his onetwentieth interest in the Long Beach property. 'fhis is alleged W have bya been made,to the extent of three-fourths of said. cuted anc:Lbearing date theSth' ofOctober, 1772, al;l before mentioned. Such a deed.is recitedin,tbedeed from William and Qtleb,/!ond;
the 4th day of March, 1823, more than 60 years before the defendant, under the East Jersey proprietors, undertook to take possession of the land. Under the circwnstances of the case it seems to me that this recital is admissible to prove the existence of the deed in question. The Newbolds and Shreves claimed the Chapman share under the deed of 1772. They were evidently parties to the partition of 1818. The two Newbolds claimed the outstanding fourth part of Chapman's share by reason of having paid the proportion of the expenses of the partition due from said fourth part. Then they make the deed of 1823, and another deed for their right, title, and interest in the outstanding quarter. These acts of ownership, taken in connection with the previous history of the property, amount to such proof of possession as to clothe their deedS of 1823 with the character of a deed by parties in possession claiming title. and to confer upon their successors in the title and possession a right to the presumption that the deed of 1772 was executed and did exist as recited in the deed of 1823; such presumption also resting for support on the great lapse of time which has intervened. It seems to me that such a presumption (not of law, but of fact, and liable to be met by opposing pr,pof) may reasonably and justly be raised against a trespasser having no title, or against the general proprietaries, who parted with their title long before. The same observations will apply to the supposed quitclaim deed of Benjamin Gibbs, dated 20th December, 1775, which is recited in the deed for one of the shares of the division, or a portion thereof, given by George Sykes to Thomas P. Sherborne,Jr., before referred to. The proceedings in partition in· 1818 are next objected to, because the original petition to the judge, and his order thereon, for the appoint. ment of commissioners, was not produced. I assume that these papers could not be found. We have, however, the report of the commissioners, showing what they did in dividing the property and allotting the different parts to the shares in severalty, with a map of the premises and of their allotments, and the order of the judge directing the report to be filed. I think that this is competent evidence, under the circumstances, taking into consideration the lapse of time, and the possession of the property in conformity with the division. We next come to the claimed transfer of title from Wickham and others (six in all) to James Burk, in 1835-37. The deeds for two of the shares (Stroud's and Stevenson's) are unimpeachable. Then there is a "deed from the administrator of Wickham, under the order of the court, to seHland for payment of debts, but the order and proceedings are not produced, though recited in the deed. Is that sufficient? I am of 'opinion that the case is not aided by the statute of 1864, (Revision, N. J. 1045.) That statute refers to officers, or auditors in attachment, acting in pursuance of a decree, judgment,execution, or order of a court, and declares that their deeds, duly etc., shaH be prima facie evidence of the recital therein. I do not think that an administrator can be called an oftiQer. The question, then, is whether the recital in an administrator's deed of au order of sale 40 or 50 years after
M'DERMOTT V. UNITED STATES.
the date of the deed, is sufficient presumptive proof of such an order; the possession of the property being conformable to the deed. In my judgment it is. The argument that the petition and order are necessary to the jurisdiction is not sufficient. Of course they are necessary to.the jurisdiction. But what is necessary to prove that they were made is a question of evidence. And after a lapse of 40 or 50 years, I think that the recitals of the deed are evidence of the facts recited, other things concurring. The same remarks will apply to the deed of the commissioners in partition made to Burk in MfI.y, 1837. I consider the transfer of title to Burk as prima. facie proven. . I believe these are all the material objecticns to the documentary title of the plaintiff. The result is that said title is maintained to three undivided fourths of the property in question, no title except that of possession being shown for the outstanding fourth part of John Chapman's interest in the Long Beach property. But if 1 should be mistaken with regard to the validity of the documentary title, the view which I have taken with regard to the possessory title requires a decision against the motion for a new trial. The rule to show cause, therefore, is discharged. A rule will be entered to that effect.
McDERMOTT 11. UNITED STATES.
(Circuit Oo'l1h"t, D. Kentucky.
October 21, 1889.)
COIIIMISSIOlQliRs-F'EJ!lS. Rev. St. U. S. § 847, prescribes the fees payable to commissioners for certain services, among others, "for administering an oath ten cents, " "and for any other service the same compensation as is allowed to clerks for like services." .Section allows clerks "for entering any return, ... ... ... or drawing any bond, or making any record, certificate, return, or report, for each folio, fifteen cents." Section 1758 provides that oaths of office may be taken before any officer authorized to administer oaths by United States laws; and section 1778 authorizes circuitcourtcommissioners to administer oaths. Supervisors of election appointed by virtue of section 2012 are sworn Officers, whose oaths are required to be preserved and filed by section 2026. Held, that a commissioner is entitled, for drawing oaths of supervisors of election, to 15 cents per folio; for administering same,10 cents each; and for attaching his jurat, 15 cents each.
He is entitled to the same compensation from the government for drafting affidavits of the supervisors that they had actually performed the services, administering an oath to each, and attachmg his jurat, where he is instructed by the attorney that such affidavits are required before the supervisors will be paid for thelr services. Rev. St. U. S. § 1014, provides for the mode of criminal procedure, "at the expense of the United States," against offenders against the United States, taken before commissioners for preliminary examination. Arrests for such offense can be made by virtue of a warrant issued on a sworn complaint only. Held, that under §§ 82S, 847, a commissioner was entitled, from the government, to 15 cents per folio for drawing complaints in criminal cases for violating election laws, heard before him, and to 15 cents each for entering returns of such warrants and subpcenas for witnesses for the government in such cases. Rev. St. U. S. § 828, !pves clerks for making dockets and indexes, on the trial of a cause where issue is JOiDed, and in a cause which is dismissed, $1. Act Congo
,Aug. 4,1886, (94' St. p.258, 0. 90S,) which isa dQficiency appropriation bill, contains no proVisions other than appropriations to pay deficiencies, butl in the·appropria.tion for fees of co=issioners, provides that they shall not be entitled to any docket fees. It contains no repealing clause, and does not refer to sections 828, 847. Held, tbat it does not repeal them, but the proviso refers simply to the money appropriated by the act, and that a commissioner is still entitled to the docket fees proVided by section 828.
.. SUPERVISORS OJ!' ELECITIONs-F'EES.
Under Rev. St. U. S. ,$ 2081, allowing the chief supervisor of elections 15 cents per folio for copies of any paper on file, he ,is to that fee for copies of the oaths of office of supervisors, which are hi' .his custody by Virtue of section 2026 furnished by the United States marshal on requisition. of the attorney general, and to 15 cents each for his certificate thereto.
He is also entitled to 15 cents for each certificate to be attached to each deputymarshal's and supervisor's account, furnished under instructions from the attorney general. ·
He is entitled to 10 cents each for administering the oath required by section 2026 to voters whose right to vote is doubted, and to 15 cetlts for each jurat attached to such oaths.
There is no statute allowing him mileage for attending the federal court in the . performance of his oftloial. dUties, and he is not entitled thereto.
12. SAlltE. , He is not entitled to a P8'l' diem fee for attending the federal. courts in the performance of his duties, as there is no statute allowing such fee; the allowance of a 118'1' diem fee to supervisors by section 2081 not including the chief supervisor.
At Law. Action for official fees. George Du Relle and H.. G. Phillips, for plaintiff. J. O. Wickliffe, U. S. Atty.
JACKSON, J. This suit is brought by the plaintiff to recover fees claimed by him for services rendered as circuit court commissioner and chief supervisor of elections. The provisions prescribed by the act of COIlgress, approved March 8,1887, giving this court jurisdiction in such cases, seem to have been strictly complied with in the bringing of the suit, viz., an account exceeding $1,000 in amount, succinctly stated in plaintiff's petition, with the nature of the claim duly set forth, and the proof that a copy of tp.e petition has been served upon the district attorney, and another copy mailed by registered letter to the attorney general. The district attorney has appeared, filed a general demurrer to the petition, together with his statement to the court that he "can file
»'DERMOTT .". UNITED STA.TEB,
no objections" to the items claimed by the plaintiff.. Record evidence is on file in the case showing petitioner's appointment as commissioner and chief supervisor; and it is shown that the items claimed were-embraced in plaintiff's account against the United States, which was duly approved by the court in the usual way, and as prescribed by the act of congress approved February 22, 1875, (Supp. Rev. St.U. S. 145, 146,) and forwarded to the treasury department at Washington, where they were audited, and the items here claimed were disallowed to plaintiff, by the first comptroller. The plaintiff has given his deposition showing that he actually performed ,the services, the fees for which are sued for here; and to the same effect is the affidavit of James T. :Ford, who was in plaintiff's law-office in Louisville during the rendering of these services, and which affidavit is by agreement to be treated as a deposition. The petitioll itself is duly sworn to, and the case is submitted to the court upon thewriUen arguments of plaintiff'!! counsel. The record in this proceeding abundantly shows that the services sued for were actually rendered, in good faith, and with an honest endeavor to faithfuL} perform the duties required by law oUhe plaintiff in his character of commissioner and chief supervisor; and this is admitted by tne in terms by the district attorney, and by the demurrer, which raises for the decision of the court the question whether the fees charged for such services are authorized by law. For convenience, the fees claimed by the plaintiff for work done by him as commissioner will be considered separately from those claimed for services rendered as chief supervisor of elections. 1. Section 828 of the Revised Statutes contains the tariff of fees chargeable by clerks of the federal courts, arid is as originally enacted February 26, 1853, having remained unchanged since then; while section 847, Id., also a part of the same act of congress, prescribes the fees payable to commissioners for certain services, "and for any other service the same compensation as is allowed to clerks for like services." (a) The supervisors ofelection appointed and comIllissioned bythecourt, by virtue of section 2012, Rev. St., upon the recommendation of the chief supervisor, (Id. § 2026,) are sworn officers, whose oaths the chief supervisor must "preserve and file," as required by the latter section. Plaintiff charges for drawing these oaths of office 15 cents per folio; ad· ministering the oath to each supervisor, 10 cents; and for his jurat or official certificate in writing that each oath was administered, 15 cents in each instal1ce,-these fees aggregating the sum of $147.60. Commissioners are allowed "for administering an oath, ten cents," (Id. § 847;) and clerks of the federal COU1'ts, "for entering any return," etc., "or drawing any bond, or making any record, cel;tificate, return, or report, for each folio, fifteen cents."l Oaths of office "may be taken before any officer who is authorized, either by the laws of the United States or by the local municipal law, to administer oaths in the state, territory, or district where such oatD may be administered." Rev. St. § 1758.
St. § 828.
Vide, also, section 1778, Rev. St. l These oaths were therefore required by law to be taken and filed, and they thereupon became a part of the records in the office of the chief supervisor. The sections of the statutes above quoted and referred to prescribe the rate of fees for taking them as claimed by the plaintiff, and.no good reason appears why the defendant should not pay the same. Exactly similar items were allowed in Re Cfonmd, 15 Fed. Rep. 641, and in Gayerv. U.S., 33 Fed. Rep. 625. It will be noticed that the charge is for drafting the official oath, swearing the officer to the same, and attaching the plaintiff's certificate or jurat thereto. The fee of 10 cents is given. by the statute for "administering" the corporal oath, as in case of a witness to testify; and the additional fee of 15 cents for the jurat is allowable where the person taking the oath subscribes to the paper, as a deposition, affidavit, and the like, and the officer annexes his jurat as the record evidence appearing on the instrument itselfthat such oath was administered. (b) The next claims in the plaintiff's petition to be considered are precisely similar to the foregoing, viz., drafting affidavits of the supervisors showing by their several oaths that they had actually performed the servicesfor which compensation was claimed by them, respectively, administering ltn oath to each, with the officer's jurat or certificate of the same. They amount to the sum of $100. Supervisors of election are paid by the marshal, and receipt· to him on pay-rolls furnished by the government for that purpose. Here the attorney general, by a communication to the marshal, before the supervisors were paid, advised him that "affidavits of supervisors of election should be affixed to the pay-rolls as vouchers when forwarded to the treasury for settlement." This instruction of the attorney general was by letter furnished to the plaintiff; and the work was for this reason, and upon such request and instruction, done by the plaintiff as charged for. There can be no l'eason why the government should not pay the fees. (c) In certain criminal cases heard before the plaintiff as commissioner, for violation oftbe election laws by the various defendants therein, he claims fees at 15 cents per folio for drawing the complaints or affidavits on which the warrants were issued, amounting to $3.30, and for entering returns of the warrants and subprenas for witnesses for the government in the cases, at 15 cents each, in the sum of $3; or, in all, $6.30. It would be difficult to conjecture any legal reason for the disallowance of these small fees at the treasury department. Section 1014 of the Revised Statutes provides the mode of criminal procedure, "at the expense of the United States," where offenders are arrested "for any crime or offense against the United States," and taken before "commissioners" or other proper officers for preliminary trial and examination. Such arrests can be made only by virtue of a warrant issued upon a complaint under oath. The fee of 15 cents a folio, as shown above, is prescribed. by sections 828, 847, Rev. St. The fee "for entering any returns" is also fixed by statute,-"for each folio, fifteen
ITbis section authorizes circuit court commissioner& to administer oaths In all cases In which, under laws of the United States, justices of the peace are so authorized.
Jrl'DEIU401"1' V. UIUTED STATES.
cents." Id. § 828. In the register of the department of justice, ce compiled by the authority of the attorney general," and issued by the attorneys general successively for now ntmrly 20 years. is a "form of commissioners' account of fees" in cases where preliminary examinations are had, among other instructions to those officers from the department of justice; and this form has been continued without change through all the publications. Among the items are those" for" drawing comreturns" of" warrant" and "subpcena" at the same plaints and rate per folio as is charged by the plaintiff here. These fees have also been allowed in the following cases: Barber v. U. S., 35 Fed. Rep. 886, and Rand v. U. S., 36 Fed. Rep. 671. And, the charges being correct, the plaintiff should be allowed them here. (d) The plaintiff claims docket fees in the cases heard before him preliminarily as commissioner, to-wit, $1 in the single case dismissed, and $3 each in the cases in which there were actual hearings; in all, $31. Section 828, Rev. St., gives clerks "for making dockets and indexes, taxing costs, and all other services [than those otherwise enumerated in the section] on the trial or argument of a cause where issue is joined and testimony given, three dollars," and, "in a cause which is dismissed or discontinued, one dollar." In U. S. v. Wallace, 116 U. S. 398, 6 Sup. Ct. Rep. 408, the supreme court, affirming the judgment of the court of claims in the case, held that commissioners were entitled to the same fees as clerks for making dockets and indexes, etc.; Justice MATTHEWS delivering the opinion. And the judgment of the court is based on section 847, Rev. St., giving commissioners the same compensation as clerks for like services. The decision was made in 1885, and in that case the commissioner was required by an order of the court to a docket containing certain entries, as is the case with commissioners at Louisville. Later, in 1887, following the case of U. S. v. lVallace, supra, Judge BUTLER, of Pennsylvania, in Phillips v. U. S., 33 Fed. Rep. 164, held that an order of court was not necessary; that "the duty of keeping a docket seems to be a plain implication from the authority conferred to issue process and hear cases;" and that" a commissioner could not propa record of his proceederly discharge his functions without ings." And to the same effect is Knox v. U. S., 23 Ct. Cl. 370. 'fhe right of commissioners to be paid docket fees, as they are popularly called, seems thus to have been finally settled in their favor, and no doubt or question could now be properly entertained concerning it, were it not for a proviso contained in the deficiency appropriation bill, passed August 4, 1886, (chapter 903, 24 St. 256.) It is as follows: "Be it enacted," etc., "that the following sums be, and the same are hereby, appropriated out of any money in the treasury not otherwise appropriated to supply deficiencies in the appropriations for the fiscal year 1886, and for other objects hereinafter stated, namely: ... ... ... Judicial ... ... ... fees of commissioners: For fees of commissioners, and justices of the peace acting as commissioners, fifty thousand dollars: provided, that for issuing any warrant or writ, and for any other necessary service, commissioners may be paid the same c<Jmpensation as is allowed to clerks for like services; but they shall not be entitled to any docket fees."
· Se\1eraLoUhe courts have considered this statute. The:fil'8t case was decided.by 'Judge BRUCE, of the middle district of Alabams,in November, 1887 vbeing Bell v. U. S.,35Fed. Rep. 889, in whicbthe plaintiff, a commissioner, was held to be entitled. to these docket. fees, notwithstanding·tlle, provisions of the statute above quoted) and judgment was rendered ,in,tke district court in his favor. From this decision an appeal was taken to the circuit court by the United States, and the appeal was dismissedrupon argument in July,1888. The next casein point of time is Strong v.· U. S., 34 Fed. Rep. 17, decided in the district. court for the southern district of Alabama, in February,1888, by Judge Tour,. MIN, pending the appeal of the former case in the circuit court; and the right of commissioners to docket fees is denied under the proviso in the 1886, abo\re quoted. In Rand v. U. S., 36 Fed. Rep. act of 671, decided by Judge WEBB in the district of Maine in October, 1888, this statute is"fully examined and construed, and the decision reached that thp proviso- does not take away the right of commissioners to receive docket fees, but only excepts their payment out ·of the sums appropriatedby the act of congress containing the proviso. And to the same effect are' Randv. U. S., 38 Fed. Rep. 665, decided by the same court as the case last cited, and Hoyne v. U. S., 38 Fed. Rep. 543, in which a similar judgment was rendered by Judge BLODGETT at Chicago; both the cases lilstcited having been determined in April,. 1889. These are the only decisions reported on this question. The act ofAugust 4,1886, does not refer·, tdsections 828 and 847, Rev; St., nor in terms repeal them; nor does it contain the usual provision that all acts and parts of acts not consistent with it are repealed. If section 847 is not repealed as to commissioners' docket fees, the plaintiff here is of course entitled to recover them. If repealed, it can only be by implication; and courts look with small favor to the construction of a statute which would necessarily repeal another, unless the intention of the legislative body is manifest, and the language clear. The title of this act is "An act making appropriations to supply deficiencies in the appropriations for the fiscal year 1886, and for prior years, and for other purposes;" while the enacting clause recites an appropriation of money for the deficiencies of that year, "and for other objects." This act, embracing some 53 pages of the statute book, contains but four other provisos besides the one pertaining to commissioners' fees, viz.: One providing that no part of the sum appropriated to pay certain judgments shall be available till the right of appeal has expired; another, appropriating certain moneys for a reservoir, provides that a board of engineers shall make a full report of the work, etc.; another, appropriating certain moneys for postmasters' salaries, with a proviso that they shall be adjusted in the method pointed out; and still another, where a sum was appropriated for the expense of a bdard of visitors to the Naval Acadamy, with'a proviso "that no part of this sum, or of any other appropriation by congress for expenses of the board of visitors, shall be used. to pay for intoxicating is the only provision containing new general legislaliquors;" and tion in the entire act, and its terms are clear and plain that the pro-
H'm:RHOT;r'. UNITED STATES.
vision Is not intended to have a wider scope than the expenditure of the nloney. appropriated by this portion of the bill. As a matter of fact, though it is not proven in this record, the comptroller, disallowing these fees, has allowed them to commissioners in this circuit without question since the passage of the act of August, 1886; thus construing the proviso as operating only to prevent the use of the money thereby appropriated to the payment of such docket fees earned during the fiscal year of 1886 and prior years. The act in question was simply a deficiency appropriation bill. Its function was only to appropriate money to pay sums already due from the government. It contains no single provision other than an appropriation of public money for this purpose; and that this proviso was intended to repeal a general law on the subject of fees of over 30 years' standing, without any reference to it, and without any clause repealing it in terms, and without any general repealing clause, will not be imputed to congress, and the court ought not to so presume. These fees should therefore be allowed to the plaintiff. 2. The fees of chief supervisors of election are prescribed by section 2031 of the Revised Statutes, which provides that they shall be allowed and paid, for services as such,certain "compensation apart from and in excess of all fees allowed by law for the performance of any duty as circuitcourtcommissioner."· Their duties are mainly prescribed by sec2020,2026, Rev. St. (a.) The plaintiff here, as chief supervisor, prepared and furniShed instructions to the supervisors concerning their duties at the registration of voters at Louisville, for which he claims $322.50, and like instructions for their guidance at the election in that city for member of congress, his charge for which is $427.05, together with instructions for the election supervisors in other towns (of less than 20,000 inhabitapis) where there was no registration, claiming therefor $161.70; in all $911.25. The statute requires the chief supervisor to prepare and furnish·· the supervisors with all necessary "instructions" for their "direction" in the discharge of their duties; and ·an examination of the various provisions of the law on this subject will show that their functions are different in the large cities of over 20,000 population, from what they are in amallercities and in theoountry; hence these different sets of instructions for which plaintiff claims compensation at 15 cents per folio,some being 10, others 11, and the rest 13 folios in length. There are tWo reported cases as to these fees for instructions by chief supervisors: I'll, Conrad, 15 Fed. Rep. 641, and GayfJl' v. U. S., 33 Fed. Rep. 625: the former decided in 1883, and the latter in 1888. In the Conrad Case, the chief supervisor was held entitled to be paid for such instructions 15 cents per folio; while in the GayfJl' Case he seems to have been allowed that fee for preparing the instructions, and a fee of 10 cents a folio for the copies of them sent to the supervisors. Since this case was submitted to the court, plaintiff has furnished an additional brief, showing recent rulings by the accounting officers of the treasury, made with the approval of the attorney general, under which such instructions arll paid for at the. rate' claimed hete; and there has been filed the ·original