were used and occupied by plaintiff at that time, and the plaintiff was an owner in common as successor to Baun, defendant's grantor, Clark, as against the plaintiff, was a mere intruder, without any rights whatever, and whatever buildings he erected were erected at his own risk, and your verdict must be for plaintiff. As I have stated, under the existing laws neither plaintiff nor defend. ant can claim a fee-simple title to the land in controversy. The treaty and acts of cession recognized absolute title only to the building which was on the land, the right to possession of which is in dispute here. But that right to possession was distinctly affirmed by the" Organic Act," passed May 17, 1884, which said" that the Indians or other persons in said district shall not be disturbed in the possession of any lands actually in their use or occupation, or now claimed by them, but the terms under which said persons may acquire title to such lands is reserved for future legislation by congress." If plaintiff or his grantor, Baun, at the time of the passage of the or· ganic act, was actually in the use or occupation of the land in disjJute, or claimed it, whether in their own right or as tenants in common, the government could not disturb him, and he and his tenu.nt in common were and are, unless they abandoned all claim, the only persons who could obtain title by future legislation, and, as against the defendant, he or his co-tenant or both have the only legal estate in the property which is recognized by the organic act, so far as there can be any legal estate. If you should find for plaintiff, it is your duty to consider and admeasure what, if any, damages he has sustained by reason of the wrongful occupation by the defendant of the premises; but against these you may offset, so far as it may be, the value of the improvements put on the premises, if you believe such improvements were made in good faith. The fact that defendant's grantor was a lawyer, and advised defendant that his title was good. has nothing to do with your verdict, except in so far as it may show defendant's good faith in the matter.
VAN HOOREBEKE V. UNITED STATES.
(District Court, S. D. Illinois.
January Term, 1891.)
DISTRICT ATTORNEYS-COUNSEL FEES.
Under Rev. St. U. S. § 824, which provides that "when an indictment for crime is tried before a jury, and a conviction is had, the district attorney may be allowed a counsel fee in proportion to the importance and difficulty of the case, not exceeding $30," the accounting officers of tne treasury department have no power to reduce or disallow such counsel fees when they have been allowed by the district court in which the trials were had. Under Rev. St. U. S. § 824, cJ. 1, which allows a district attorney in a trial before a jury a fee of $20, the fact that the jury disagreed does not deprive the district attorney of his right to such fee.
Where a district attorney goes from a place where he is engaged at the district court to a place whitner he is officially called..to appear before a commissioner, he
is entitled to mileage for the distance so traveled, where such distance is less than that from his home to the place where the commissioner sits.
SAME-AT'rACHMENT FOR CONTRMPT.
An attachment for contempt, in which a district attorney properly and necessarily appears for the government, is an independent suit, in which he is entitled to statutory fees.
SAME-PRESEN'fATION TO TREASURY DEPARTMEXT.
The act of congress, which requires the accounts of district attorneys to be forwarded "when approved" to the proper accounting officers of the treasury department, does not make presentation to such officers a condition precedent to an action against the government on such an account. Following 1i.n»in v. U. S., 37 Fed. Rep. 470.
At Law. G. Van Ho(mbeke, in pro. per. A. Connolly, for the United States.
ALLEN, J. The petitioner, late United States district attorney for this district, files his petition in this case against the government under the act of congress of March 3, 1881, to recover in the aggregate $548.75. This sum is made up from various items for services performed by him during his term as district attorney, and for money paid by him for telegrams in connection with his official duties, and for money for freight and charges paid, laid out, and expended upon goods, wares, and merchandise shipped to the several places of holding courts in the district. These accounts, it seems, were all satisfactorily proved in open court, and were, except one class, afterwards presented to the accounting officers of the treasury department, where the disallowances occurred. The first question, according to the order in which the account is made out, arises upon items 48, 61, and 67, fo1. 6; 65, 87, and 111, fo1. 7; 55,65, and 67, fo1. 8; 170, fo1. 9; and 26, fo1. 10. These 10 items present the same question, under tbe following clause of section 824 of the Revised Statutes of the United. States:
·· "When an indietment for crime is tried before a jury, and a conviction is had, the district attorney may be allowed, in addition to the attorney's fees herein provided, a counsel fee in proportion to the importance and difficulty of the cause, not exceeding thirty dollars."
The district court, upon proper proof, and with a personal knowledge of the importance and difficulty of the cases, allowed a counsel fee of $30 in each. The accounting officers of the treasury department trarily cut down the allowance to $15 in each case. Upon what ground this action was taken no plausible theory has been advanced. It certainly would not be safe to admit that these officers have the supervisory power to reduce a fee allowed by the court, for this would include the power to increase such fee, in the absence in either case of any knowledge of the circumstances under whicb the court acted in making the allowance. The ]Jowers and duties of the accounting officers do not go to this extent. These items will bp al;owed on the authority of U. S. v. lVat£rs, 133 U. S. 208, 10 8up. Ct. Rep. 249. Items 24 and 26, 1'01. 10, belong to the class already considered, only difI'ering as to their fiwts in the suspension by the accounting officers in
this instance of the entire counsel fee allowed by the court, $30 in each case, while in the cases of the items first mentioned there was simply a reduction in each instance of $15. Items 24 and 26, fol. 10, will therefore be allowed. No reason is apparent for the disallowance of items 14 and 110, fo1. 9; 28, fol. 11; and 63, fol. 14. JUdgments in favor of the government were regularly entered in these cases upon pleas of guilty, and it is understood to have been the uniform practice of the accountillg officers heretofore to allow them. They will be allowed. Items 90 and 144, fo1. 10; 20, fo1. 12; and 63, fol. 14,-the petitioner seems clearly entitled to under the first clause of section 824 of the Revised Statutes. Under this statute, the distlict attorney, in a trial before a jury, is entitled to a fee of $20. The disallowance of these items by the accounting officers rests on the fact that there were no verdicts in the cases, the jury in each case having been discharged by the court after all reasonable effort to make a verdict had been exhausted. The fail ure of the juries to make verdicts had nothing to do with the labor of the district attorney in the preparation and trial of the cases, and he is as clearly entitled to a fee, where a disagreement of the jury occurs, as where a verdict is promptly returned into court. The items will be allowed. Items 23 and 25, fo1. 10, will be allowed. They were allowances for services rendered in cases tried by juries where there were verdicts of guilty. The statute before quoted is explicit in fixing the fee of the district attorney in such cases at $20, and no reason has been suggested or explanation offered to justify the action of the accounting officers in suspending the claims. Items 8!, 10, and 18, fo1. 13; 5, fol. 14; and 39, fol. 15,-are for mileage traveled by the petitioner while he was district attorney from the place of his abode to Cairo, a place of holding court in the district, and to the places of examination before commissioners of persons charged with crime. The ninth clause of section 824 of the ReviseclStatutes fixes the compensation for such services at "ten centfl a mile for going and ten cents a mile for returning." The proof in support of these items was full, and not controverted. The only snggestion offered agai11'3t the allowance -of any of them applied to one or two of the items where the petitioner, 'while acting as district attorney, and being engaged at a district court in :session at Cairo or Springfield, charged from these points to the places where he was officially called to appear before commissioners, and not from the place of his abode, Carlyle. In these instances, however, the distance was shorter, and, of course, the mileage less, than had he charged from his home. The proof showed that, on being notified, he went directly from Cairo or Springfield to thc place of examination. If, in such cases, the distance to the point of examination had been greater than from tlle place of his abode, the objection to the allowance of the items mi<Tbt be well foundedj but, where there was a saving to the government by course pursued,it should not be heard in complaint. The items will be allowed.
VAN ROOREBEKE V. UNITED STATES.
The accounting officers also rejected, it seems, items 33, fol. 12, and 31, fo1. 14. Upon what ground this ruling was made it is difficult to understand. The cases were attachments for contempt. They were new and independent suits, in which the petitioner properly and neces· sarily appeared for the government. In Hayesv. Fischer, 102 U. S. 121, Chief J ustice WAITE, delivering the opinion of the court, said: "If the proceeding below, being for contempt, was independent of and suit, it cannot be re-examined either by writ of separate from the error or appeal. This was decided more than 50 years ago in Ex parte Keamey, 7 Wheat. 38, and the rule then establislJed was followed as late as New Orleans v. Steam-Ship Co., 20 Wall. 387." To the same effect is Goodrich v. U. S., 42 Fed. Rep. 392-395. These items will be allowed. Item 46, fo1. 11, is also allowed. It is clearly covered by section 824. Item 9, fo1. 14, must be allowed. There was a trial by the court, a jury being expressly waived, and judgment in a case at law where the United States was a party. The second clause of the act of congress, providing for the" fees attorneys, solicitors, and proctors," gives a fee of $10 in such cases. The petitioner files with his petition a long, detailed, itemized account, including every item, however small, on which he asks for judgment. This account includes items for money paid out by him for telegrams on government business relating to his official action, and for money paid for express packages in connection with the performance of his official duties. On the trial these various charges, found on folios 17 to 22, inclusive, were fully proven; but the present district attol'lley interposed the objection to their allowance by this court that they had not been, previous to commencement of this suit, forwarded by petitioner to the proper accounting officers of the treasury department, under the act of congress of February 22, 1875. I was inclined at the time to think the objection well taken, but, on examinativn, have yielded to the rulings in Ravesies v. U. S., 21 Ct. C1. 243, and Erwin v. U. S., 37 Fed. Rep. 470, where the doctrine is upheld that the act of congress requiring that the accounts of district attorneys, marshals, clerks, etc., shall be forwarded, "when approved," to the proper accounting officers of the treasury. does not make presentation to the accounting officers a condi-. tion precedent to an action. On the authority of these cases, the items, are allowed. The petitioner having sustained the items of the bill of. particulars by satisfactory proof, I am of opinion that a fair construction, of the' statute entitles him to judgment against the United States for$548.75, and costs.
INDEPENDENT SCHOOJ"-DIST. OF ROCK RAPIDS
(Circuit Court, N. D. Iowa, TV. D. June 8,1891.)
SCHOOL FUNDS-JUDG:HEXTS-ORDERS ON TREASURER.
Orders on the treasurer of a school-district, directing him to pay certain judgments, issued under Code Iowa, § 1787, providing that, "when a judgment has been obtained against a school-district. the board of directors shall payoff and satisfy the same from the proper fund by an order on the treasurer, " are not evidences of debt independent of the judgments on which they are based, and payment cannot be enforced w1thout reference to the ownership of the judgments; and a demurrer to a petition thereon by an assignee, in which it is not averred that tho judgmonts have been paid or canceled, on the ground that it fails to state a cause of action, must be sustained.
At Law. On demurrer to petition. J. M. Parsons, for plaintiff. ll1c1vlillan & V(m Wagenen, for defendants. SHIRAS, J. It is averred in the petition thatlln the 11 th day of Decembel', 1883, two jndgments were rendered in the district court of Lyon county, Iowa, against the independent school-district of Rock Rapids, in favor of the Bank of Rock Rapids, Iowa, one for the sum of $2,988, and the other for the sum of $519.88; that on the 14th day of April, 1884, the said school-district, in order to payoff and satisfy said judgments, issned to said bank an order in the following form: STATE OF' IOWA, HOCK HArIDs, April 14, 1884. "$2,874.14. hundred & seventy-four 14-100 dollars from the judgment fund, for judgment rendered Dec. 11, 1883, with interest at six per c("nt. from date. "By order of board of directors. E. C. HOACH, President. "II. SEEKLER, Secretary." -and a further order in the same form, for the sum of $504.95; it being averred in the said petition that said orders have not been paid, and that the same are now the property of the plaintiff, John N. Richards, It is not averred in the petition that the judgments for which these orders were issued have been in fact paid or canceled. Had the orders in question been paid, such payment would have been a payment of the judgments; but the mere drawing of the order upon the secretary, and the delivery thereof to the judgment creditor, although done for the purpose of paying off the judgment, does not in fact payoff or satisfy the same; in other words, the facts averred in the petition do not show that it was the intent of the parties that these orders should be received as payment of the judgments, so that the latter, as evidence of indebtedness, became merged in the former. These orders were issued under the provisions of section 1787 of the Code of Iowa, which provides that, "when a judgment has been obtained against a school-district, the board of directortJ Mhall pay oft' and satisfy the same fro111 the proper fund, by an order on the treasurer."
"The 1'reasurerofthe Independent Di8tl'ict uf Rock Rapids, in Lyon County: Pay to Bank of Rock Rapids, or bearer, the sum of two thollsand eight