MORTON V. UNITED STATES.
It is said for the plaintiff that the superior court had jurisdiction "under either section 11 of said act of 1878, or section 565 of the Code of Civil Procedure, [of California,] to' make the appointment, provided that the creditors of the corporation came in and requested or consented to such appointment; and also upon the application of the stockholders or directors, and that, as the complaint does not show that there was no such application in that adion, this court must presume that there was, if such presumption is neces· sary to uphold the appointment of the receiver." In the first place, no inference can be indulged in favor of the plaintiff that the judgment or order relied on to sustain the suit was based upon a complaint in intervention by the creditors, stockholders, or directors of the corporation. The general rule is that a pleading is taken most strongly against the pleader; and surely, where, a& in this case, the complaint alleges that a certain judgment was entered in an action brooght by the attorney general in the name of the people of the state against a corporation created by it, it cannot be presumed that such judgment was in fact based upon a complaint in intervention, filed in the action by some third party or parties. In the second place, neither creditors, stockholders, nor directors of a corporation could become parties, by intervention or otherwise, to a proceeding the object of which was to enjoin a corporation from -carrying on its business accordance with its charter. That power belongs alone to' the state that grants the franchise. Section 565 Of the Code of Civil Procedure of California provides that, upon the dissolution of any corporation, the superior court of the cO'Unty in which the corporation carried on business or has its principal place of business, ep application of any creditor of the corporation or of any stockholder or member thereof, may appoint one or more persons to be receivers or trustees of the corporatiC'Il, etc. That section is manifestly inappUcable to the facts of the present case. The demurrer must be sustained, upon the ground that the complaint does not show a right in the plaintiff to bring the suit. So ordered.
MORTON v. UNITED STATES.
(District Court, D. Indiana.
January 15, 1894.)
CLERKS OF CIRCUIT COURT OF ApPEALS-FEES AND SALARY.
Under the judiciary act of March 3, 1891, §§ 2, 9, a clerk of the circuit court of appeals is entitled to retain from the fees and emoluments of ihis office, after payment of all other expenses, a sum not exceeding $500, in addition to 'his salary of $3,000.
At Law. Action by Oliver T. Morton against the United States to recover fees as clerk of the circuit court of appeals for the seventh circuit. Heard on demurrer to the petition. Overruled. A. C. Harris, for petitioner. Frank B. Burke, for the United States.,
;.This petition'is brought under the Bet of. Mareth:lS,' 1887, which constitutes the district court a court of cllllims;,m cases. , The petitioner is clerk of the circuit court' ofapPl3alsfor the sevl3nth judicial circuit, and sues to recover $371.20>of.the fees and emoluments of his office, which, he has covered, inlto the treasu.ry of the United States, under protest, upon demandotthecomptroller of the treasury. He claims that the amount in controversy 'belongs to him, under the act of congress creating the circuit court of appeals. 26 Stat. 826 et seq. The sllit involves an adju(}.ica.tion in .regard to the compensation to whichithe clerk is entitled under sa.id act. The money sued for is the whc)le amount of the fees and emoluments of his office for the year ending December 31, 1892, less the amollnt paid out for office expeMes, inclllding clerk hire, which he was allowed to .retain. Do these fees belong t() the clerk? This depends llpon the construBtionto be given 'toaections 2 and 9 of said act. So much of section2as has any'application to the question is as follows:
"And the salary of the clerk of, the court shall be three thousand dollars a year to be paid in eqUBJ; proportions quarterly. The costs and fees in the court, now provided for by lawfilhall be costs and fees in the cirCUit. court of appeals; 'arid the same shall be expended, accounted for and 'paid . for, and pll.idovet to the treasury department of the United States In the same manner, as' Is provided In respect of the costs and fees court.". In
Section 9 is as follows:
"That tiiemarshals of the several districts in which said circuit court of appeals may be held shall, under the direction of the attorney general of the United 'States, and, with IIlsapprovaI, provide such rooms in the public buildings of the United States.!1S may be necessary, and pay. all incidental expenses of said court, inclu111ng criers, bailiffs and messengers: Provided, however, that in case proper 'rooms cannot be provided in such buildings, then the said marshals, with the approval of the attorney general of the United States, may, from time to time, lease such rooms as may be necessary for /;Iuch courts. That the marshals, criers, clerks, balli1Ts and messengers shall be allOWed the same compensation for their respective services as are [is?] allowed for similar services in the existing circuit courts."
COllnsel for the petitioner contends with great earnestness that the clerk is entitled to the salary provided for in section 2, and, in addition thereto, to retain Ollt of the fees and emoluments of his office the same amollnt which clerks of existing circllit cimrts are allowed to retain. The district attorney, on the other hand, insists that he is only entitled to his salary of $3,000 a year; and that the last paragraph of section 9 only relates to sllch incidental expenses of the COllrt and its officers as the marshal is authorized to pay, and has no. relation t9 the compensation of the clerk for his services. Sections 2 and 9 ollght to be so construed as to give fll11 effect to the language of each. They ollght not, however, to be constrned, llnless incapable of other constrllction, in sllch a manner as to give the clerk of the circuit co:urt of appeals the salary provided for in section 2, and also the' right to retain, in addition amount out of the fees and emoluments of his thereto, office as is allowed in the case of the clerks of the circuit courts. Such a constrllction would reslllt in double compensation. It
woul!! make his compen.sation larger· :than .that received 15y the clerk of the supreme court of the United States, and nearly twice as large as that received by the clerks of the circuit courts. It cannot well be doubted that no such result was contemplated by the framers of the statute. Still, if the language employed necessarily forbids any other construction than one leading to such a result, it would be the duty of the court to adopt and enforce that construction. I think the apparent conflict may be reconciled by regarding section 9 as flxing the full measure of compensation which such clerk is enHtled to receive. This section enacts that the clerk of the circuit court of appeals shall be allowed the same compensation for his services as is allowed for similar services in the existing circuit courts. It may be suggested that this provision was in· tended to fix the fees which may be lawfully taxed and collected as between the clerks and the litigants, and not Rij providing for the disposition of the fees when collected. This construction would make the compensation of the clerk the amount of his salary, and no more. I am not, however, disposed to adopt this construction, because the statute declares that he shall be allowed the same compensation for his services as is allowed for similar services in the existing circuit courts. This, in my opinion, was intended to fix the limit of his compensation. He is to be allowed for his services the same compensation as is allowed to the clerks of existing circuit courts for similar services. The clerks of existing to receive, for all services rendered by circuit courts are them, $3,500 a year. If the clerks of the circuit courts of appeals are to receive the same compensation as clerks of existing circuit courts for similar services, then they cannot receive a larger sum for all services rendered by them rthan $3,500 a year. The clerks of the circuit courts receive their compensation out of the fees and emoluments of their offices, which they are allowed to retain without covering the same into the treasury. The method in which their compensation is paid is not material. The fees are collected under authority of law, and they belong to the United States as much as though they had been covered into the treasury. In my opinion, the clerk of the circuit court of appeals is entitled to the same c()mpensation as the clerks of the existing circuit courts,that is to say, $3,500 a year, and no more. This construction is in harmony with that which has been uniformly applied in reference to the compensation of district attorneys of the United States. These officers, except in California and the southern district of New York, are each allowed a salary of $200 a year. Rev. St. § 770. Their compensation is fixed by another section as follows:
"No district attorney shall be allowed by the attorney general to retain of the fees and emoluments of his office, * * * for his personal compensation, * * * a Bum exceeding six thousand dollars a year." rd. § 835.
With some exceptions, each United States marshal is allowed a salary of '200 a year. His compensation to be retained out of the
feeS'?8.nti is not to' $6iqQ() The; .constructIQn gIyen to the law relatmg to' ,ihe cijmpensatlOnof dIstrict attorneys' and marshals has been to, regard the sallirY 'ltiila part of the $6,000 of compensation to which each of tliese'ofticers is entitled. This construction by tbe treasury department was well known and understood by the congress, and it is fair to presume that it was the legislative intent that the like construction should be given to the sections of the sta'tute under consideratioil. The plaintiff is therefore entitled to retain, in addition tCl his 'Salary, for his personal compensfltion Clut Clf t4e fees and of his office, the ejum of $500 a year, if so much remains afterthe (lther expenses required to be paid therefrom are satisfied. The' complaint shows that the . sum . of $371.20 of the fees and emoluments of his office remained at the end of the first year, after thepayrhent of all other e:tpenses. In my opinion, the clerk is entitled to retain' for his personal compensartion, out of such remaining fees and emoluments, a sum not exceeding $500 in addition to his sa-hiry. It follows that he was entitled to 'retain the entire amount of the fees and emoluments remaining in his hands at the end of the year, iii 'addition to his salary. The action of the treasury department in compelling him to cover the same into the treasliry 'was wrongful. The payment having been made by the plaintiff under compulsion and over his protes't, he is entitled to maintam an action to recover the same. U. S. v. Lawson, 101 U. S.
The deumrrer to the petition 'will therefore be overruled, and it is so ordered; to which ruling the defendant excepts.
UNITED STATES v. EISNER & MENDELSOHN CO. (Circuit Court of ,Appeals, Second Circuit. January 12, 1894.) No. 57.
CUSTOMS DUTIES-CLA8SIFICATIOl'I-MALT EXTRACT.
A fluid compound labeled, advertised, and sold in bottles as "malt extrace' is dutiable as such,' though it contains but 12 per cent. of malt extract, under paragraph 338 of the tariff act of 1890, and not as a proprietary medicine, under· paragraph 75. 54 Fed. 671, reversed. Ferguson v. Arthur, 6 Sup. Ct. 861, 117 U. S. 482, distingmsl1ed.
This is an appeal from a decision of the circuit court for the southern district of NeW York, (54 Fed. 671,) reversing a decision of the board of general appraisers which affirmed the collector's classification for duty of certain fluid malt extract. The merchandise is Johann Hoft'sMalt Extract, imported in bottles. Reversed. During the year 1891 the Eisner & Mendelsohn Company imported from a foreign country into the United States at the port of New York certain. consisting of a fluid, in colored, molded glass bottles, holding each not inore than one pint, and not less than one quarter pint,andlabeled "Johann Hoff's Malt Extract." 'This merchandise was for duty at the rate of 40 cents per gallon, as "malt' extract,' fluid, in bottles," under the provision for such