OpenJurist

:uNrTED STATES.";

EWing, 140 U. S. 142,150,11 Sup.,Ct.. Rep. 743j U. S. v. Hickey, 17
Wall. 9. The judgment is reversed, and the cause remanded,with inatructioll8 to proceed therein in accordance with this opinion.

UNITED STATES tI. BASHAW. (OIrcuCt Oourt

of .AppeaZs,

liXahtJl, Oircuit.

May 93, 1891.)

No. 25.

t.

DISTBICT AnORNEYs--CoJoll'ENBATION IN ltEVENttB CASES.

Under Rev. St. 5888, a district attorney who has rendered lemces In the exam· Ination o:tviolations of the internal revenue laws, referred to him by the collector, Is entitled 'to compensation therefor upon a certi/l:cate of t,he judge before whom such cases are triable,although no proceedings may have beell instituted. '47 Fed. Rep. 40, affirmed.

I. , ,'

SAME-PRA.OTIOE OF DEPARTMENT.

A ruling of the secretary of the treasury, Bnd the practice of the department from 1885, supported by an opinion of the attorney general. from which the solicitor of the treasury dissented, to the effect that district attorneys were not entitled to compensation for: such examinations unless followed by prosecutions, is not binding upon the c\lurta, especially in view of a contrary l1ooision by a district court in 1885. " Where an amelldment the phraseology of a former act, it will be presumed that it was the intentioll to make a corresponding change in its meaning.

STATUTES-AMBNDMBNT-CONSTBUOTION.

Appeal from the Circuit Court of the United states for the Eastern District of Missouri. Petition by Thomas P. Bashaw against the United States to recover for services rendered as a district attorney. Judgment for plaintiff. 47 40. The United States appeals. Affirmed. Fed. Georg6 D. Reynolds, for the United States. Thomas M. Knapp and Tlwmas R. Harris, for appellee. Before CALDWELL and SANBORN, Circuit Judges, and SRIRAS, District Judge. SRmAs, District Judge. At the September term, 1890, of the circuit court for the eastern district of Missouri, the, appellee brought an action against the United States to recover compensation for certain services rendered by him during the years 1887 and 1888 in the capacity of district attorney for the United in said eastern district of Missouri. The petition contained five counts, the second and third being based upon services rendered by the district attorney in examining into a number of alleged violations of the revenue laws of the United States, and which had beeureferred to him for examination by the collector·of the district, under the provisions of section 838, Rev. St. The trial court found in favor of theplairitiff on these counts, and from this and the judgment based thereon the United States hlis appealed to this court. . , . . . . . The question at issue, as stated· in the first, second I and fourth assignmerits of error, is that the court below erred ill receiving any testimony

in supp()rt.Gf \ca'nBis.·:ptlaotion :set forth, in 'theeecorld'l1bQ third counts,o(:therpetition, !fol' the reasdnthat the facts lherein stated did not show amy.cRl1se:6faCtion againsbthe United- States. Th.ese.facts, briefly stated, are that the collector of internal revenue for the first collection district of Missouri, during the years 1887 and 1888, reported to the plaintiff, as district attorney, 'thlitviolations of the internal revenue laws had been committed in a number of cases; that the plaintiff, as required by law, enminedinto ll,od the facts thereof, and after such inquiry and examination he reported that proceedings therein could not .probably be .sustained, and that the. ends of justice did not require prosecutions therein; that tpe services thus rendered were reasonably worth the sum ,ot'tive e.aeh Cl1sej that plaintiff duly Dlade,oQt his claim for expenses and incurred and rendered in the same,to ,the district judge for the eastern district,o/Missouri, who duly allowed Bnd certined the same; that said claim, so certified, wall presented to the department of the that the ,defendant wrongfully neglects and refuses to pay,tbe"Slltn e · " ..,. .,' for determination is' th.us narroweci:down to the single whpthel', under the prov'isions of section 808 01 the Revised Statutes, the district attorney is' entitled to compensation for services cuses in which 'no prosecution the theory of the govefnmentbeing thntto elititltithe cJj:;trict littorney to recompense for ,of,' this t ,Ill t.Section 838, Rev. St., reatls as lollows: " , ' , \" . the of d:stl'ict !\ttorney to whom any collector of "ltllh,11 custllll1s?h5fintt'rllalt'evi'nUe shall l'efion,accIlI't.J1ngto law. any llaqe in wh,ch or ftll'teltiire hll>i lIet>n i ill thediMtI'ict. of such at torney, any IInei for tht' ViolatIOn. of IUi.'- law af the Unit..d 8tatl's relating to the ri'vehuf', to cause the proppr prllcepdings to,bt',co.mnit'!ncel alid pl'l):iecuLeti without delay, for the IInps, penllohil's, and !!or!,t'itnre>i.ln su.'h Case providt'd. unlt'ss upon inqlliry:l,t!11 I'Joc,etl.ngs cannot probahly be Slllltairiptl, Oli that the entls 'Of pll hUc.i nstice do !lot rl'q'lire that snch proc"etlings be illstituted; in which cllse he shall rpport the fac·ts in customs casps to the secretary of thetre;umry. lind i!llntel'llalrevt'!lue cases to the cummissioner of interrHllr"\tenlil', .for lheir,'d,rl'cti.. Alit! fOl' thf'l' \!XI,enSes int'u,nt'llantl lIte district attol'lleysball I'fceive and be Pllill as til....1Il'cretary of the treasury shallul'tlm IIf the jUIIg'e hefore whum such case8 j,llstllfld arl:! lrlell'()1" '4ispllsetl of: that the, annual comppnsatilln uf such district litturl1ey shall nuL maXlululll amount prtll:lcl'ibed by law, by reason of, Inicn alluwance liWI' pi\yroPlIt. 'Ii The'SE.>cti6hin,exphlss tEmbs district attorney to exan'litie int6 every'case of the internal' revenue 'laws 'him 'by, the purpose of <letermining whether proceedings for fine"'fttld be sustained, arid whether and in the cases whprem conclUSIOn IS III the affirmatIve, to Illstltute the proper proceedings"a,nd in the cases wherein,the <lonc11.lsio,n' is against the protherch'l, theu . attorney. revort

UNITED S'.l'ATES 'D. BASHAW.

mets'tothe cOmmissioner of internal revenUe. Thus it is made the afthe district attorhey to: examine into and take action, either by institution of proceediog8orby report lJ,dvel'se thereto to the commissioner, in every case of alleged violation of the revenue laws referred to him by the c011ector,alld then the section declares that" for the expenses incurred in a11 Btleh eases. the district attorney 8:1;:Iall receiva and be paid from the treasury," etc. What cases are included within the words" in, allsuchcases?"iDo not these words clearly refer to the cases previousl.ymentioned in the section, to wit, the cases reported by the collector to' the district"attorney for· examination? If the reference is to the cases reported by the collector for examinatian, in our judgment no other construction is admissible, then ihe section clearly enacts that the district attorney is entitled to be paid for expenses incurred and services rendered in all cases l'eported to him for examination by the collector, regardless of the results of such examinati,on. Unless compelled to do so by clear and unambiguous language;. we ought not to hoH that the congress of the United States in the enact:Inpnt of"ftstatuteclearly .intended to protect the individual citizen, as against the institution of proceedings not called for in 'the furtlierance of justicej warned the district attorneys of the United.' S1lates that 'they could not expect oompensationfor the expenses cincurredand theserdces rendered by them in making theexamiliations provided fori in the statute, u'nless theyshouHfind cause for theinsti;. tutiotH)( proceedings. 'Such aconstrllction would not only tend to defeat' the:verypurposeoHhe enactment, but it would, in effect, place the govijrnment in the attitude of making the question of compensation for the 'Services' depend" not upon the fact of the rendition of the services,butupon..the fact that the conclusion reached was in favor of the claiIh'llSsertedby' the' gdvernment·. That which is demanded olthe district attorney by the section· in question is examination into facts and a deterlnination:of what public justice requires,which services are certainlYJudidalorqullsi judicial in their nature, and it is repugnant to all just (lrinciples that cornpeI1satioofor judicial servihea should ever be npon then/sults of the dflcisioh rendered.: The position taken on b-P.half of the United States is clearlyand'lJriefly ruling made by Secretary Folger in 1884, aodcited in the brief of counsel, in which he states: of the opinion that the secretary ran have no jurisdiction lirid hence , no power tOimake an alJowahce section, unlt-ss there is a judge's 'cprtificate, and that no jUdge can, give the required. certificate eXj)(lpt i.o that have ,bt:eo ·trieu or disposed of before' him 8S judge." ,Wengree in the view that the basis for the action of the secretary of 'llsurY' is the certificate oithe proper judge, hut we do: not 'concur ·the tr Intht'l' pI!oposition, that no certificate can be properly made except as to l(lilSesfictuaJly tried or of before a judge. The section provides that the attorney: 'shall "in· all such caSes,"-thatis, in all Cllsesreported -to hiro foriexamination,--be paid s110h sum as the Mthetteasury shalhieem'ju$t Up611 thecertiticate of the judge" beforewhQD1, such

or disposed of." Section 838 includes rlviolations ohny law of the United States relating to the revenue." These violations may occur in a state,a tl:lrritory, or in the District of Columbia. The name or description of the judge before whom persons charged with violating the provisions of the statutes of the United States in regard to customs,internal revenUe, and the like, are.triable depends upon the locality the dffense may have been cotl).mitted. Instead of defining name description the different judges who are authorIzed to gwe the certificate when the offenses reported on have been com'filitted in a state ot ,in ,Ii territoryor 7in :the District of Columbia, the section coverethe whole ground by declaring that the certificate shall begi\renby the judge Il:before whom such cases are tried or disposed ofj" in other words, the judge who is competent to try" such cases" is com· petfill'itl to· grant the certificate. :Itwillberemenlberedthat the facts to be certified to are not matters ansingon the trial of; cases before the certifying judge. The services fol" wMcn compensation 'is sought under this section are all rendered before any :proceedingsiri court o.reinstituted, and the facts upon which thecerlificate is based iAlJ,llstbe proven before the certifying jlidge, with· out 1'@gl.l.'d to the question 'Whether a trial has been had or not,because tlffl'e"'idence adduced on the trial would not show whether the attorneY hadlol1 lhad not or rendered service in examiI;ling into the¢ase! before the institution of proceedings. In other words, it is not ..neceassry, in order to enable the judge to give the proper certificate, that should ha:veb.een tried before him, because all that he could leal:U,Qnsuoh trial WQuld not give him the information upon which his cerfiJiqate must be' based, and thereforll· no weight can be given to the argQlllent thatcompenllation cannot be made to the attorney fdr services in casesiDot brought to triall becal,lse such trial is needed in order to enablethej.udge to make the requisite certificate. If this limited view of the setltionis correct, it would follow that if a district attorney had rendered services in caeesreported. to him by the collector, had brought suit$thereon, and had tried the cal,lses, but betore his account had been certified to by the trial Judge the latter had died or resigned, the attorney ebuld'notrecover compensation because he could not furnish the certifi'cate Mthe trial judge, although his suocessor in' office might certify to all the necessary facts. rt is also urged in argument OD behalf of the United States that theprior action of the treasury department should be given controlling 'weight in the constructionbfthis section. on the familiar principle that in cases of ambiguity theconstrnctiorinpnt upon the statute by the de· 'partment chaI'ged with itsexecntion1and which has been received and -acted upon, should notsuhsequently.be changed by judicial interpreta·.tion" except for cogent reasons. ,The facts of this case do Dot bring it wi.thin the rule invoked. Parties have not acted, ndr have rights been acquired, upon the faithQr foundatiou of any ruling by the treasury de,partment upon thisqueetion of the district attorney to comit be properly said that there is pensation. for serviCeS rendered; Dor

752 cEiiles are tHed

REPORTER,

vol. 50.

UNITED

STATES

t1.

BASHAW.

753

any settled'departmental rule adverse to the claim made by the dIstrict , The section requires action .to be taken primarily by the judge of the proper district in certifying to the account·of the attorney. In 1885 this question was carefully examined by Judge TREAT, then (lCcupying the position of district judge for the eastern district of Missouri, and he held that the district attorney was entitled to compensation for regardless of the question whether proceedings were or were not instituted therein. See In re Account of Dist. Atty., 23 Fed. conclusion then reached by Judge TREAT has been recogRep. 26. nized as the correct interpretation of the statute in the eastern district of Missouri from, that day to this. Furthermore, in the opinion given by Attorney-General Garland iiI 1885, and cited by counsel for the United States, it is stated that the solicitor of the treasury accords with Judge TREAT in the construction of the statute; thus showing that there was not agreement upon the matterin the departments at Washington. The fact that the secretltryofthe treasury since 1885 has been guided by the opinion then given: by the attorney general, contrary to the views of the solicitor oLthe treasury, is not sufficient to prove an established :depart·mental.rule; in view of the further fact that the ruling of the attorney generalwasadNerse to that' made and adhered to by the judges of the eastern district of Missouri when called upon to adjudge the question. On thec()llttrary, from the record before us, it appears that this question has been' an, .open one fromtha beginning, and that there is no just ground for holding that the district attorney is debarred fram demand.jngat the hands of the court an interpretation of the statute, regardless oftheaction of the treasury department in refusing payment of his account. In support of the position taken by the United States, the case of Stantonv. U. S.,37 Fed. Rep. 252, is cited, wherein Judge SHIPMAN held that if section 838 was the only one which relates or has related to the question, the construction claimed by the district attorney would seem to be correct; but that as section 838 was an amendment in 1873 of the seventh section of, the act of July 18, 1866, and as the latter act expressly declared that compensation should be given for expenses incurred and services rendered in prosecutioDs for such fines and personal penalties, it must be assumed, notwithstanding the change in the words used in the two statutes, that congress, in the enactment of the amendment, only intended to include internal revenue cases with customs cases, and <iid not intend to change the provisions of the act of 1866 in regard to conlpensation to the attorney. It is a fundathat, if possible, force must be given to all meutal rule the words used therein, and also that, when a previous statute is amended by au .alteration of the terms usecl therein, it is to be presumed that it was the intent to alter the meaning of the previous act in that particular. If it was the intent of congress, in passing the amendatory act of 1873, to leave the question of compensation to the attorney unchanged, why ,was it thatcongress struck out the words "for expenses incurred and services rendered in prosecutions for such fines and personal penalties," etc., and inserted the words found in section.838? . The v.50F.no.9-48

tisiJtha.Hhe Ithe :stt\ture ,wtMichangoo (iiIJor,deE>.!to: chapge:itB meanillg:.:Thevery fact that the' prior Retia tHe intent . to' .change the:pre-exiating law, and ,the'iprijsnmptionnrnst'ibe that it was :intended to; change the statute in ,illUbe :pa;rtit:rilars' touching, which we find arilaterial change in the lan'gttageiofthE! act. If,'8ocording tothe',theoryoLthe'Stnnton aue, the ,only,purp08eof: congress in adopting tHe amendment of1873 was t6add revenuecaS6\I to the class'of cases whioh might be reported to the district attorne)T!'fol'1tiis exall1imition and action'th.ereon, why change the.Jangbageofthatrolause of the net of<l866 which limited of 90mpei:lj3t(tion to,eYpeD8esincurredand services rendered in prosecutions ifoti fines andpenalties?i' It is admitted in the opinion in theStanton Ol8e ,tljat ahe: :language found in sectian,:838 justifies the construction put thereon; by the district attorney;' This is tantamount to saying that thIs clause, of section 838, if co,nstrued by itself, does not moon tbesame thin,gf 8sJthe.wrresponilingelaus6, in ,the Ret ,or, 1866. Is it not then a .foroeddfUlristructi0!llofsectioriJ88.8tohold.;that -the· difference in the Ian· ,guagemh16t go: ;for' naught, uptln; ,t:ile ·assum ption thatcongtess only in. tended.r:to:ilnlarge the statute byJinclutliilg within its provisions easElS' under the :inte:rlnal re:IJtlnUe laws? .In our judgment, the language' ulle9uilidhei amentlatory,il.ct of 1873 mustba :givenirtE;:legitimate force I lind, the .fait amI natural meaning. olthe: words I)ot to, be ,nal'rowedin the attempt to .make ita meani-rig conform, in this2.Jl8rticular to the previous statute., . There,calinotbeany doubt of theburdebsplaced by the section upon the distoiot attorney It is piainlymadehisdo:tytD, examine into evel'y case ::ttpOlJted tobin\bythe ,0011oot61'1:l of customs or of the internal -revenue,: arldto:determinewbether they, ahoul\ior .should not be prosecuted: N6" ilessdii'e'ctandmnequivocal is thedeeliuatiori of theseotion l'forthe,exp81llses incurred and services reridered in all suohcases th.e .district attomeyshalLIi>e:'paid."The question of payment or no payment i&;not lelt open IbyAhe:statute. ,It is noHeft to the discretion oitha seeretal'y ofthe1treasury,or,of a judge toi:determine whetber payment s&ll ,be made. Thel!ltatutory dedaration,is that in all such cases therlistricbaUqrney: shall:OO . paid . Buehl. reasonable' sum as' the proper .judge:shaU'cel1ti(y,. and shall be, approved by the s6cretaryofthetreasby the rendition ofservices ury. d,The' ,right,to .in the of,cases reported to the attorney for examination by The ,amount to be paid is to the· collectors iof pl1QvingtheJactslIl,:lerore the proper judge, obtaining his be certificate and: the llpprovaJof,tbe l secretary oLthe treasury. The purpose oftheetatutebeingclearlyshown by, a consideration 0[,a1l its pro'visioDSi this purpo$e is bot to be defeated because there are to be found the .statute' aom'e expressions which, if literally construed, wouldmi:1itate againsLthe.meaninggiven .thestatute as a :whOle. In such are 1'equiretl..,1lo give to 'such words or clauses not a literalcdnstruetion. but onaw.hiohwHl give effect to the clear intent of the legii.<lature gathered from the entire statnte. Thus it

'fAYLOB

flA PENNSYLVA.NIA

00.

is said, by the ,supreme courHn Heydenfeldtv. Mining 00.,93 U. S. 634: "If a literal, interpretation of any part of it would opetate unjustly. 0," lead to absurd results, or be contrary to the evident meaninj:!; of the act taken asa wholl3, it should be rejected." See also Ohurch of the Holy Trinityv. U. S., 143 U. S.457 t 12 Sup. Ct. Rep. 511. In our judgment, section 838, taken as a whole. clearly declares that the districtattorlley is entitled to compensation for services renpered in all cases reported to him for, examination under its provisions, regardless of the question whether suits are in fact instituted or not; and this clearly expressed purpose is not to be changed or modified by reason of the ambiguity created by the phrase" upon the certificate of the judge beJorewhom such <lases are tried or disposed of." These words can be construed SO as to give a,n hnmlonious meaninF; to entire section, and the liteml construction of the particular clause must yield to the broader meaning demanded by the se<ltion as a whole. . ] nview of this eonciuliiion, the judgment of the court below must be and ia ailirwtlJ.
TAYLOR fl. PENNSYLVANIA

Co.

(Ctrtnttt Court. N. D. Ohf.l>, E. D. May 9, 1892.) No. 4,767.

L

C.tllWT1mI!-41'lURJES 'rO

Ie

J,\I "n aetion against a ,railroad rompany for Injuries to a passenger due to the pressure of a crowd passinI!' its I!'ates to a train, plaintlfl' and anotber witnellswstlfied tbat but one of the Jive gates WI'S open. Heveral witnellses for defelldant testified tbat all ,the gates were opon, but they had other duties to perform at the train which would interfere witb tbeir obsel vation on this point, and tbe gate keepers and policemen stationed at the other four were not examined. 11eltl. ,tbat a Iinding by tbe jury that but one gate wa open would not be disturbed on motion for new trial.
OP CAR,B.

TRlAL-WEJIlUT OP EvmJll'OlL

B,Ufl!:.....bJI·RII!:S AT

A carrier is to ,the highcst degree of care as to the condition of Its engines. cal'S, bridges. and otber appliances. because negilg-ence as to them involves extreme peril topastlengers; therefore, as a passenger's detention at a depot, or bis exit to the trl;lip, is not atten,ded Wilh the bazards pel·taining to tbe journey ('n the cars, the d('p;i'ee of care Is justly lessened to the extent that at su<!b a time and at sucb a 'place the carri!'r is bound to exel'Cise only a rell.!lOnlloble degree of care for the protection 01 its passengers.

"

,

8.

Wbere a railroad companY,by means of advertisements and reduced rates, Inc1ucl4;ls an unuRu,,1 crowd to collect at it!l stations. it is bound to o!le such means as are re<1!1onably necessary to prevent injury to individuals from t.'he conduct or pres, Inre of tbe crowd In passing to and from its trains. Where, on account 01 the failure of tbe railroad Ilompany to use luch suftlclent means of prevention, a passenger is jammed agaim,t a raililll!'j and !lustains injurt"", to her '!Ijline. whick resull In paralytl18 of bel' legs, anI! dlsallllity for liIe. a verdict for dlllDagcs is

8A,l\III:-CROWllI:'iO AT STATJO:'I's-NsnJ.IGI!:)\'CB.

, . SAMIl-UUIAIlIlS.

At Law. Action by Sarah E. Taylor agoinst thePennsyivania Compan." to recover damages for personal injuries. A ,;erdict was rendered for $.'),500, and now moves tor a new triol. Denied. Jolm M. Sttdl, F. E. Hutchins, and Hobert B. Jlurray, for plaintiff. J. R.Carey'!Ind W.'O.. Boyle, for defendant.
:

"

ifhe

,..

this suit ,t9rCilcover