defendant was concluded by the 'judgments against it,in the suits referred to in the findings of fact, and, that the plaintiff not bound to account in this suit to the defendant for fees arising in naturalization cases. The proof and rulings were also immaterial as to so much of the plaintiff's claim as accrued in the year 1887. as the plaintiff consented at the hearing to have deducted from his claim the SUm 0£$160.71, which was all the defendant would be entitled to have deducted upon its own of the law and facts in the cas.e. is entitled to havejudgment entered in his favor for 89,839.29, and costs taxed in accordance with section 15 of the act of.March 3, 1887. (24 St.' 508.) Cour, J.. I concur in the conclusions of Judge NELSON, in this case. The question of Hill's accountability to the United States for moneys al,; leged to have been earned by him clerk of the district court in naturalization cases was determined by this court and by the supreme court in the case of U. S. v. Hill, reported in 25 Fed. Rep. 375, and 120 U. S. 169, 7 Sup. Ct. Rep. 510. In that case it was contended that Hill, as clerk of the district court, had received certain moneys in naturalization cases for which he should account to the United States in his emoJument returns, and especially that he should accoutitto the extent of his earnings in such cases under the fee bill of 1853, but the supreme court decided that Hill had received no moneys in naturalization cases to be accounted for in his emolument returns, and that the fee bill was not applicable to such cases. In the present case the defense is made to the plaintiff's claim that he has earned certain fees in naturalization cases which he has not included in his emolument returns. As the supreme court has decided that the fee bill is not applicable to naturalization cases, the offer of proof that Hill had performed certain acts, alleged or claimed as under the fee bill, by which be earned emoluments in such cases, was properly rejected, and the request for rulings, in effect, that Hill is accountable for earnings in naturalization cases under the fee bill, was properly denied. Judgment for plaintiff.
CRAWFORD tI. UNITED STATES.
(D!mict Court, E. D. MU80Uri, E. D. November Ie, 1889.)
UNITED STATES COMMISSIONERS-DoOKET FEES.
Act Congo Aug. 4, 1886. (24 U. S. St. 274,) entitled" An aot making ay,propriatlou * * * and for other purposes, "which provides that commisslOnel'li shall rece1 no docket fees, abolishes dooket fees altogether, and does ve not merely except the payment of suoh fees out of the appropriations thereby made.
S. SAME-DRAWING RSOOGNIZANOES-SOALINGBII.L.
A commissioner's bill for drawing recognizances, cannot be scaled on the ground that the form of rec0ll'nizance used by him was longer than necessary, where such ,form has for a long tIme been used in his district, and thus impliedly sanctioned b;y tbe court. , A commissl.oner is entitled to feu far drawing complaints. Following Band T. U. S., 88 Fed. Rep. 666.
(lR,AW';FORD fl. UNITED STA.TU..
" .SUm-FILING FINAL BONDs. Rev. St. U. S. § 847, providing for commissioners' fees, makes no provision for the allowance. of a fee for "llling final bonds," and the commissIoner is not entitled to compensation therefor. ' .. Sum-ACKNOWLEDGMENTS. Commissioners are entitled to the statutory fee for the aolmowledgment of each surety on a bond, and not limited to one fee for all the acknowledgments to each bond. .. SAME-ENTERING RETUBNS OP WABRAlII'TBo Under Rev·. St. U. S. § 847 p.r.oViding that for iSSUing. any warrant or writ, and for any other service, comm1 ssioners shall be allowed the same compensation as is allowed clerks for like services, and Rev. St. U. S. § 828, providing compensation to clerks for entering any return, etc., a commissioner 1& entitled to fees for entering returns of warrants and subpcenas in his docket. 7. SAME-STATEMENT OP PROCEEDING&. ,. Where the commissioner, instead of into court a full transcript of prohad before him, returns the original papers, with a short statement, indorsed on the complaint, showing what action was taken by the committing magistrate or officer, he is entitled to a reasonable allowance for such indorsement. S. SAMB-8BVERAL PROSEOUTION&. , . Th.e commissioner will not be disallowed fees in two or more cases on the ground that they might have been prosecuted jointly with another case of the same charaoter, where it appears that the district attorney direoted the method of prosecution by several complaints, instead of one. t. SUB-QUALIPYING SUPERVISORS, Rev. St. U. S. § 2031. which provides tbe compensation to be paid to supervisors of election, does not provide for any allowance to be made tbem for tbe expense of qualifying fortbe discba.rge of tbeir duties, and a commissioner is not entitled to fees for draWing aftidavits and administering oaths in qUalifying sucb superVisors, though he performed Buch services at the request of the ohief supervisor.
At Law. Petition for the allowance of a claim against the United States for fees as commissioner. Di,ckaon &; Smith, for plaintiff. George D. Reynold8, U. S. Atty., for defendant.
THAYER, J. This is an action against the United States under the provisions of the act of March 3, 1887, (24 U. S. St. at Large, 505,) to recover the sum of $371.75; the same being fees alleged to have been earned by the plaintiff, as United States commissioner, between March 10, 1887, and March 31, 1889. Accounts embracing the several sums now sued for have been presented to the treasury department for paymentfrom time to time between the dates last mentioned; but the items in question have, been stricken out and disallowed. for various reasons. Attached to the petition in the case is a lengthy, detailed statement of the fees now in controversy, which embraces numerous small items. For convenience in the consideration of the same, they will be grouped into classes. First. Docket fees in the sum of $34 are claimed. The allowance of this item depends upon the decision of the question whether the proviso in the deficiency appropriation act of August 4, 1886,1 (24 U. S. St. 274,) operated to abolish docket fees in future, or merely to except the payment of such fees out of the appropriation thereby made. It has been held that such fees, in view of the proviso, can no longer be altAct Congo Aug.. 4, 1886, entitled" An act m,aking approl'riations to supply deficiencies, .. '" *. and for other purposes," provides that commissioners "shall not be en"'tied to any docket fees. "
lowed. Fule. Strong v. U. S.,34 Fed. Rep. 17; McKinistry v. U. S., 34 Fed. Rep. 215; Faris v. U. S., 23 Ct. C1. 374; Calvertv, U.S., 37 Fed. Rep. 762. On the other hand, it has been decided that they may be J.egally allowed, notwitpstanding the proviso in question. Vide Bell v. U. S., 35 Fed. Rep. 889; Rand V'o' U. S., 36 Fed. Rep. 675; Hoyne v. U. S., 38 Fed. Rep. 543. For reasons fully stated in Strong v. U. S. and Faris v. U. S., supra, it appears to this court that congress intended to abolish docket fees in future; and the charge made in that behalf is accordingly disallowed. Second. Fees charged for drawing "recognizances" and "complaints," amounting in the aggregate to $107.05, form the next subject of contention. It is conceded by the gove'rnment that a commissioner may charge for drawing recognizances; but it is contended that the form of bond in use in this district is too prolix. The comptroller has accordingly scaled the commissioner's bill, allqwinghim in some instances for only three folios, and in other instances for a less number, without any reference to the number of folios actually contained in the bonds taken. In some instances the charges contained in the commissioner's accounts for drawing complaints have only been scaled; in others, such charges have been disallow"edin toto, on the theory that they are illegal. For drawing recognizances and complaints, I find, as a matter of fact, that the commissioner has only charged for the actual number of folios contained in the papers o,y him' drawn. The form of recognizance now in use in.this district has long been in use, and has been impliedly sanctioned by the court. I conclude, therefore, that the commissioner is entitled to the compensation claimed for drafting 'recognizances. The court fully agrees with what was said on that subject in Rand v. U. S., 36 Fed. Rep. 673, 674. Some difference of opinion exists concerning the right of commissioners to charge for drawing complaints. The question has been considered at some length in two cases, to-wit, Strong v. U. S., 8Upra, and Rand v. U. S., 38 Fed. Rep. 666, 667. I conclude that good and sufficient legal reasons are shown in the case last cited for allowing such fees, and that the due administration of the criminal law requires that such fees should' be allowed, The plaintiff is accordingly entitled to recover all that is claimed in his account for drawing recognizances and complaints, to-wit, $107.05. Third. Plaintiff makes a small claim, amounting to $4.50, for "filing final bonds." This, as I understand, is a claim for compensation for indorsing on a bond the date that it is presented to and accepted by the commissioner. Section 847, Rev'. St. U. S., makes no provision for compensation for such service, nor does the statute in any place make it the duty of the commissioner to make such indorsements-on bonds or recognizances. Final bonds taken by such officers are returned into court, and there filed. So far as I can see, it is wholly unnecessary to indorse and file bonds in the manner indicated. For these reasons the claim is disallowed. FO'Urth. Claim is made for taking acknowledgments to bonds, at the rate of 25 cents for each person who acknowledges the same. Different
CR.:\,WII'ORD fl. UNI;I'ED STATES.,
opinions have been expressed. as to legality. 9f such charges, and among the cO\lrts that allo lV such fees there is a diftc;Jrence of opinion as to whether a charge should be made on account of each surety, o:l,",only, one fee of 25 cents for each bond. Vide Strong v. u,. S., and Rand v. U. S·.,8'l.Lprq,j Barber v. .U,S., 35 Fed. Rep. 887j Heyward v. U. s., 37 Fed. Rep. 764. ;£t seems to be the practice to allow such fees most districts. I accorq.ingly a!,!sent to that view of the la;w. Such fees ing,allo:wed, it seems to D;lemost reasonable tp hold that it should be allowed for each acknowledgment by a surety, and should not be limited to 25 cents for each bond. Fifth. A charge is made, in the sum of $26.40, for enteting returns of warrants and subpcenas in the commissioner's docket. With respect to this charge there is also a difference of opinion as to its propriety. Strong v., U. $., 8upra, and Rand v. U. S., 38 Fed. Rep. 666. In this district it 4as long been the practice of some commissioners to note the return of warrants and aubp<:apas in their dockets. The practice was, very likely adopted in .with that of justices, who, by the lavys of this state, are required to make such entries in dockets by them kept. For many reasons it seems desirable that a notation should be made in a commissioner's docket of thei time warrants and subpcenas are returned. for the allowance, of such fees is to be f9und in subdivision 7 847/ and 8 of section 828. 2 The charge made ($26.40) is hereby allowed. .., .' ., " ' ,Si.a:th,. A controversy next' over several made by the c.omfor. what ,he "certificates of attendance j" the whole to $10.05. The phrase by to illdicate tpecharacter of the service referred to is mislea4ing. He really means "!:?ythe phrase "certificate 'of atte,ndance" ,a short ,statement indorsed by hiIUopthe back of complaints, after cases were disposed of, showing what a,ction he had taken. It has never been the practice in this district, so far as, I am advisea; for commissioners to ,return into co,lin a full, transcripi oftheir proceeqings, as APPearS to ,1;>e the rule in '!:lome <Mst*ts.. Hr;yne v. U.S.;S8:E'ed.Rep. 545. lieu of a transcript, original are returned. with a .shorf statement indorsed on ,the showing whlttaetiup' magistrate or officer. This is necessary to render the proceeding iritemgible" and the charge made for the same at the rate of 15 cents per folio is 'rea8OqablJ:l,and,jnmy Opipil;)ll, ought.. to ,be allow,ell. Hoynev.U. supra. I aceordingly allow the charge of $10.05. Seventh. I see no reason to question the legality of the various per diem fees claimed by the commissioner, amounting to $35 in the aggregate, nor the legality of the fees claimed in the cases of Charles F. ane Christian Lautenschlager, amounting to $6.60. These items are accord1 Rev. St. U. S. § 847, provides, (commissioners' fees:) "For issuing any warrant or writ, and for any other service, the same compensation as is allowed to clerks for like services. " llRev. St. U. S. § 828, provides, (clerks' fees:) "For enterinR' any return, rule, order, continuance, judgment, decree, * * * or making any certificate, return, or report, for each folio, fifteen cents. "
disallowed:; as lit' becaust. was oi the opiiir6titBat certain sessions' by the com,were unnecessary: " of the facts;, satisfies me th!!-tnti'more 13essions wereheld't4an were necessary' to dispose '()f the'pusiness the commissioner in a' judicial manner'. ! In'the Latitenschlagercaseait seems thaHhe commissioner's fees were 'diW1o'Wed because these' cnsesmight have been" jointly same It does. not' a:ppear to' have beeh theCOI11fuisSlOner's fault; howl:!ver, that more'complalOts were filed than were really neqessary. .' The district attorney appears,' to ,have directed the'tilet1\o'd of prosecution 'O'1severftl complaints,instead of one. As no mote "than legal fees ats'dlim'lin'ded, they must 'M Barber 'S., 35 Fed. Rep. 888. , ! '" ',," Etighth. The last item in the '8Gcdunt tie<>.essary t6,bementioned isa' qualifying 317, super,:isprs ?f' electloD, an'd, admIDlstermp;' oaths,tosuch persons;:the sum claImed In each: ih!lbi.'Qce being 40 eents.T4eplaintiff was' 'not the chief supervisor of this congrssSiprtal district, but appears to have ren.. dered theservioes in guestionatth'e re<!uest of the chiefsupervis'or,who was at the'time disabled by sic1hi¢ss. If any statute clearly that the Un,ited Statesshould'paY'theexpenses of supervisors of electionindtfttetl' in qualifying for thedisch'arge pftheir after theit appointnlent, I, should, have little hesitation in holding that the government for, the' semces iii.' question. But 'find no such law.. Serltion'203t,1 t6'whichmy 'attention Was not'lleem to me: to that! the Will; andcertaiMt it does not in tenns 'declsI:eth'at it, shall, pay expenses. When' persons are appointed;to'()ffl;ce, I believe, it is ustial for them to quallfy at their own expense. intendedtnat' such expenses of supervisors of election should be 'borne by the" government, the int:entouglit to hilve been more 'Iam'eouatrained tohqld that the service in, questIon' 'Was te'rldeted fottlie ,anll riot 'for the government: '1%i:itemof:$126.80 Deducting the amountS from the sum sued for, ($371.7.5',) tlle'balanoe due is $206.'45, for which judgment will be
9llowed. r' The per dib7iireeS,'\te're
" ' · , ..
,1'1tev.Bt.t1;a.9ost, prOvIdes fol"the' aUo'Wanoeof OODlP8nsatlon to supervtsora of
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'the Jaw to be reJrtstel'ed electors, etc., the fatitthat'one of the grand'jurors W,'as i,llegallY ,'registered,1i1 no groulld,,'for, qu,ashing , anindic.tment,bhHs SUCQ a defect only alS iil St.U. S.i 1025, no ,shall by reason of an,. defebt m matter of form which shall bot tencho the defendant.,
AtI.ilw. Plea in abatemeIit to indictment. ;, E. 'K.,F08ter,: J: E. ,Hart71idg6, and Coopar" for ,defendant. . J.N.StriJpling, U. S. Atty. " SWAl1n, J. a, plea in abatement to, the indictment herein, alleges that it shoQld be abated and quashed upon the ground, in substance, that William Pittman, one, of the grand jurors who presented said indictment, is not, and was not he was impaneled as a member of the ,grand jury, a duly-registered elector of the county of Duval, his placeiofresidence. , The plea admjts that, his name appears upon: the registration list ot puval county; but it is contended that it is there illegally, in this:·that it was placed there on the 29th day of September, 1887, and by an officer not entitled to register,and therefore he is not a legally qualified juror. To this plea the government has interposed a demurrer, and alleges that the plea does not state facts which in point of lawl!QoW' that tile juror in question incompetent qualified. Seotion 800 :of the Revised Statutes declares that "jurors to serve in the. c.aurts of the United States, in each state, respectively, shall have *. * ,.. as jurors of the highest court oflaw in Sll$ state ,* * *,t the time." Act Aug. 1, 1868, Laws Fla., provid8$- that "all persons who are qualified electors of this state, shall be liable,to be drawn as juoo,rs, except as hereinafter provided," etc. j and Act 'June 7, 1887, § 9, prOVides that qualified electol'B can register only betweelicertain dates inea:ch year in which there shall be e!eqtioti. The grand juror William Pittman did not register in such a year. Is he a competent grand juror, or must the indictment against the prisoner, J. W. EWali, be quashed for this reason? In the case of U. S. v. Benson, decided by FIELD, circuit justice, SAWYER, circuit and HOFFMAN, district jUdge; in the district of California, reported in SlFed. Rep. 896, the facts upon which the decision was rendered are veryshnilar to those in this mise. In that case the plea in abatement set. up that "the grand jury which found theiudictment was and inoompetent body, having no authority or' jurisdiction to And or pre!leutit,or to find or present any indictment, for the reasons that some of the'persons who compoaedthe jury' .,.. ,.. * were not at the time tax-payers in California, nor were they assessed for taxes on anyp1'operty on the; laatassessIUent roll of the countjes, from which they were, respectively summoned." Thedefendanta,iQ :that case coQtended thattheiu..