M'DERMOTT V. UNITED STATES.
Rev. St. § 2026. For a copy of any paper on file, the statute allows him 15 cents a folio. Id. § 2031. It was his duty to make and furnish these copies, and the statute fee therefor is certainly chargeable to the government. The petitioner has computed the copies at 15 cents a folio for the copy, and 15 cents for his certificate thereto; which makes this claim $135.90 for the copies, and $67.95 for the certificates thereto, for which he is entitled to judgment. (e) In addition to these copies of their oaths, the chief supervisor was required to furnish his own official certificate, to be attached by the marshal to each deputy-marshal's and supervisor's account, showing the number of days each performed service as such officer. The instructions contained in the correspondence above referred to, as well as the correspondence between the petitioner and the district attorney, show this beyond any question; and the fee of 15 cents for each such certificate is charged in accordance with the statute, and amounts to $67.95 in all. (f) Petitioner was obliged to attend the United States court at Covington in the performance of his official duties as chief supervisor, and and he charges mileage at 10 cents a mile one way for 110 miles. The statute gives neither commissioners nor chief supervisors mileage in any case whatever; nor can the court. It was doubtless the petitioner's duty to attend the court as he did; and, as it will not be presumed that the law requires duties and expenses from an officer without compensation, perhaptl petitioner's expenses on this trip to Covington might be recoverable, were they sued for; but the claim for mileage must be allowed. (g) Section 2026, Rev. St., prescribes, among other duties of the chief supervisor, that he shall cause the names of those who may register and vote, or either, "whose right to register or vote is honestly doubted, to be verified by proper inquiry and examination," etc.; and, in pursuance of this authority, petitioner administered an oath to each of 23 voters who were refused the right to register, and he charges 10 cents each for same. and 15 cents for the certificate or jurat to such oath. As these are the fees prescribed by law, plaintiff should be allowed this compensation for his services in this behalf, in the sum of $5.75, as claimed. (h) The remaininll; item of $125 is for a per diem fee of $5 a day for attendance on the circuit courts of Kentucky, 25 days, in the discharge of his duties as chief supervisor. Section 2011, Rev. St., provides that "within not less than ten days prior to the registration." or election, if there be no registration, the court shall be open for the transaction of the business contemplated by the statutes, (title 26,) and" shall proceed to appoint and commission, from day to day, and from time to time," the election supervisors, (Rev. St. § 2012.) The chief supervisor is required to receive all applications for the appointment of supervisors; and, "upon the opening * * * of the circuit court for the judicial circuit in which the commissioner so designated [as chief supervisor] acts, he shall present such app)ications to the judge thereof, and furnish information to him in respect to the appointment by the court of such .8Uv.40F.no.4-10
pervisors of election," (section ·2026, Rev. St.;) and" there sllall.he allowed and paid to each supervisor of election * * * who is appointed'and perforrnshis duty, under the preceding provisions, compensation at :the rate of five dollars per day for each day he is actually on duty"notexceeding ten days," (section 2031, ld.) The case In re' Conrad; 15 Fed. Rep. 641, holds that the chief supervisor, under this is entitled to the per diem fee, but limits the amount to 10 days' attendance.· In Gayer v. U. 8.,33 Fed. Rep. 625, the chief supervisor was allowed this per diem fee for 26 days; the court placing his recovery on the ground that "he would be entitled as commissioner, when engaged in his official duties, for services analogous to these," to be so paid. In. the Conrad (f.ase the court construes the words "supervisor of election" to embrace the chief supervisor; in the Gayer OxBe heis held not to be embraced within them; the two cases thus proceeding to judgment on widely different grounds.> There is no similarity whatever between the duties to be performed by the supervisor and the chief supervisor; and by the statute (Rev. St. § 2031) the former is paid only by a per diem fee, while the latter is paid according to the tariff of fees prescribed in that section. There is no per diem fee whatever provided by section 847, Rev. St., for attendance upon the circuit or district court, but only for time em ployed in the preliminary examination of defendants charged with'criminal offenses, which certainly bears no analogy to the duties required of the chief supervisor by title 26 of the statutes. Nor can his services performed simply llschief supervisor be paid for by the fees provided for commissionerS for entirely different duties, although the same person holds both' offices. Thtre being therefore no provision in . the law authorizing the payment of per diem fees to 8 chief supervisor of elections, petitioner cannot be allowed them, and judgment must he refused as to this item. It follows, from the foregoing conclusions, that the plaintiff is entitled to recover of the United States the amount of the several sums herein allowed him as proper charges fot the services rendered by him, both as United States commissioner and as general supervisor of elections; and 'jUdgment is accordingly awarded him against the defendant .for the aggregate amount of said allowances.
,(Ci1:et«t Oourt, S, D. Nuw York. October 80, 18811.)
L · 6riSTOMS
:, . 'Certa.in llsh pltstea,knowtl iii thetrooe as" Ancbovy Paste" and" Bloater Paste.· . MId to'be in.C . .. Wi.thi P the "piCkles. and sauces of kin,dS." in SChedule. G, act ¥arch !!, 1888, (Tariff Index, 284,) and dutiable at 85 per centulll ad valorem.
SDlE,,-dO'NSTRUC'nON OF STATUTE.
The phraseology of said paragraph "pickles and sauces of all Idndl" il to be can..' stru.ed in its trade medning·. , SlId QrdiJ;lary meaning, alld not ill aily par,tiolUar.Or restriotel1 ., " ,.. .. .,
,A,tLaw.. :,A,Qtio:n to recover alleged excessive duties by thecollectol' of· QUatOInsat the port of New.York from the plaintiff$ on their importa-. tions, between November 16, 1886, and July 20, 1887, on certain fish pastes known in the trade as "Anchovy Paste" and "Bloater Paste," contained in small jars, or bottles. The collector levied duty thereon at 35 per centum ad valorem under schedule G of the tariff act of March 3;· 1883, (Tariff Index, 284,) which reads, "Pickles and sauces of all kinds, not otherwise specially enumerated or provided for in this act, 35 per centumadvalorem." The plaintiffs protested, and claimed the same to be dutiable at 25 per centum ad valorem under the same schedule, (Id. 283,}to.-wit, "Salmon and all other fish, prepared or preserved, and prepared meats .of all kinds, not specially enumerated or provided for in this act, twenty-five per centum ad valorem." The merchandise in suit was shown to be fish paste manufactured by some process or formula known only to the manufacturers thereof, whereby anchovies or bloaters were finely ground and mixed with spices, resulting in a highly seasonedmixture,generally used as a relish with other food, and as a stimulant provocative of hunger or thirst. It was shown by the evidence of several importers of and large dealers in provisions that the term "sauce" had a restricted trade meaning at the time of the passage oftlie tariff act of March 3, 1883, in which nothing was considered a sauce unless it was in liquid form; that the merchandise in suit was a paste, and not a liquid. Some of the witnesses testified that it was not only used as a relish when taken with food, hut was in itself nutritious. On motion for a direction of a verdict in favor of the defendant,defendant's attorney cited Maillard v. Lawrence, 16 How. 251; Greenleaf v. Goodrich, 101 U. S. 278; Syn. Ser. 3492. Comstock Brown, for plaintiffs. EdwardM"Uchell, U. S. Atty., and Henry C. Platt, Asst. U. S. Atty.· for defendant.
LACOMBE. J., (charging jury.) It is often difficult to determine which of two parallel rules of interpretation promulgated by the supreme court shall be applied; whether we shaH take words in their general or in their special meaning. I am unable to differentiate this case from Maillard v. Lawrence, 16 How. 251,in which the circuit court had been requested to instruct the jury that if they should find that at the date of the act the shawls in question were commercially known as "manufactures of worsted, or of which worsted shall be a component material," and that they were not known in trade as "clothing, ready made," or as "wearing apparel," they were subject only to a duty of 25 per cent. This instruc-; tion was refused; and the supreme court sustained such action, holding that, while it was true ihat where words or phrases are novel or ob.. llcure, as in terms of art, it was proper to explain or elucidate them by reference to the art or science to which they were appropriate, it was not so when such words or phrases were familiar to all classes of trade and occupation; that the. popu1lu" or received import of words and phrases