. 85 FEDERAL :REPOR1;'ER.1
claim of1their,debtOJ.', for dnl)lagesagainat ;it.<, OomHy .between oourtsreqilirea this, and if it"did not, 'and thil!l course coulP.llot be .maintained, :I unhesitatingly should. remand· this case to the cOlirtt for the reason that this J1larne.comity would require tbat we should decline to take jurisdicti(mof it, ap.d to. leave the parties to carryon their litigation in the state courts where this·no,nresident defendlmt commenced it. The onl..)' embarrassment I have felt abo,1;1t it is thatthere is no pleading other procedure in the record informing us of the facts appertaini:ng to the original bill in, chancery, by company seeks to collect its debt against the which plaintiffs. If counsel for the plaintiffs think, it to amend the record in that behalf, they may have leave to take that course, and by replioation to the plea. in·abatementi , or .by affidavit of the facts, accompanied by a transcript of the reooro of the chancery court, or by petition appropriate to the purpose, or otherwise as they may be advised, they may make the facts known. But what I act upon the ordinary rule of comity between the here is a conviction courts is called into action by the mere suggestion at the bar, or sugrecord, however they maybe made, of.the facts above referred 1'0. Under our dual system of government, with these concurrent powers of the state and federal courts in operation with the right of rem()vaI from one to the other, there would be an intolerable conflict and embarrassment, such as we have here, if the cour:ts did not, in muttial,aid of each other, eagerly and amply put in counter operation the amicable rules of comity that sh(lUld govern all courts under like circumstances. The motion to quash or abate the service of the writ of' garnishment upon ,the thelIlselves will be allowed, but the suit will not bedismissoo, alld the plaintiffs have leave to issue alias writs from time to time as they may be accordingly.
PtJ'LESTON Y. UNI'rED STATES. (Circuit Court,
D.Florlda.'; .January 31, 1898.)
, , .
Allegations of fact contained In brief resI,lective cO\lnsel cannot be reIledupon .to sustain. a demurrer, where the record does not dIsclose the' matter relled on. '
SAME-Ext>ENSES IN ItNDEAVORING TO AR.R1l:ST-HORSEHTRE.·
The contract for the hire of a horse by a deputy marshal, not exceeding the $2alIoW'ed by law In endeavoring to arrest, Is of such· an inseparable nature that it cannot be saId that one-half of the expense should be merged in the fee for transportatIon returning, and the whole sum should be illlowed as an actual expense In endeavoring. A marshal Is entitled to a fee of 50 cents for committing a prisoner on warrant of removal in a. district to which .he has been transported In accordance with law. . .
8. SAME-FEE FOR UO)lMITTING ON WARRA:i.."'i' OF
SAME-SERVICE OF SUBPlENA.
A person committed to jail to answer a charge before the circuit court can be taken before a commissioner by a deputy marshal, pl'ovided he has a subpoona for such attendance; and for this ser.vlce the deputy is entitled; to the regular fee.
PULESTON. V. UNITED STA'l'ES.
SAME-SERVICE OF SUBP<ENA.
A marshal is not bound to take judicial notice of the that cases were to be tried on the same day before the same commissioner; and he is bound to serve subpamas duly issued by a commissioner, and. the circumstance that a witness was examined in another cause before the:, same sioner does not deprive the marshal of his regular statutory fee therefor.
SAME-SUNDAY PER DIEM.
The marshal is entitled to his regular per diem where the court was opened and adjourned on Sunday, in pursuance of section 671, Rev. St. Orders made by the court upon the marshal to bring prisoners to court for trial who have been committed by commissioners to jails of other counties are not within the provisions of Rev. St. § 1030, that no writ is necessary to bring into court any prisoner or person In custody, but that It shall be done upon order, and no fee shall be charged therefor by the clerk or mar£ihal, which relates solely to prisoners and witnesses .while In attendance upon court; and the marshal is entitled to charge mileage In the going to ,serye such orders.
SAME-ORDER TO BRING IN PRIdONER TO COURT.
nefore the act Of COJ:lgress of May 28, 1896, the marshal was authorized , to appoint a special ·deputy according to the practicelldopted by law in the state wherein his district is located; and althougb such deputy has not taken tile oath prescribed by section 782, Rev. St., if his appointment Is valid under existing laws relative to appointment of deputy sheriffs In the state of his district, fees ear,ned by such deputy are properly chargeable to the United States.
SPI!)CIAL DEPUTy-NIllCESSITY OF
The marshal, while transporting prisoners to a penitentiary involving a trip of 36 hours,. is entitled to sleep, and, as a part of his reasonable and actual expenses, to engage and use a sleeping-car berth.
SAME-OFFICE EXPENSIllS-OATH TO ACCOUNTS.
The marshal Is entitled, under the act of congress of May 28, 1896, to be reimbursed for the expense of affidavits to his current accounts to the treasury departmept.
Buckner Chipley, for petitioner. J. Emmet Wolfe, Dist. Atty., for the United .states. SWAYNE, District Judge. In this proceeding the petitioner seeks to recover the amount of certain fees charged by him for official services as marshal for the Northern district of Florida, which were included in his quarterly accounts to the government, and approved by this court, and thereafter disallowed and rejected by the accounting officers of the treasury. depa,rtIUent. The record discloses comin this ,cQurt, as conferred- by the. act of congress of March 3, 1887, all necessary prerequisites hl\ving been complied with. To certain of the items enumerated in the petition the district attorney has filed a deIIpj,r,J;er,contending that it is apparent from an of said iteIlls that the same furnish no basis for a legal charge against the United 'States for any services or disbursements therein claimed. These items have been grouped and classified in the petition as follows: . Schedule A. Proper mileage actually traveled in the service of writs in United Statescar,res. Certain items only tinder this schedule have been reached by the demurrer, the first (item 9) being a claim !for: :mileage in this district; .and the record does disclose, as contendea by the district attorney, that tJ1e prisoner. not carried
85 FEDERAL REPORTER.
before the nearest commissioner. This item cannot thus be reached by demurrer, and the same may be said of items 11, 13, 15, 16, 17, 18; and these questions here involved will be passed until the record, after plea and: taking of testimony, discloses the exact natUl'e of the claim. Apparently, they are correct. Schedllle B. Actual expense in endeavoring to arrest United States prisoners: Expense of horse hire where it was necessary to procure same in making arrest, the ma,rshal claiming the expense therefor is in going, the return being merely incidental, and the expense being the same whether the return's made in the conveyance or not. It is maintained on the part' ()f the petitioner that undeI' clause 18, § 829, Rev. St., the marsbal is entitled to actual expenses, not to exceed two dollars a day, in addition to his compensation for service iln'd travel, when endeavoring to arrest a man charged with an offense against the United States. In all of these items the'deputy had received the warrant, and thereupon he hired a horse for the ordinary fee of two dollars, and went in search of the prisoner. The accounting officers maintain that one-half of the expense of hiring the horse should be merged in the fee for transportation returning; but it rnustbeborne in mind that he is E,':p.titled to two dollars, if expended, in addition to travel and service; and, by clause 20, he is entitled to a fee of ten cents per mile for the prisoner. This latter is It fee; and not an expense. The hiring of a team is not a severable contract. It is a,plain, sim.plecontract, and covers the use of a horse for a certain time. It is immaterial whether the deputy returns with the horse, or sends it back,as soon as he arrives at the place of arrest. The cost is for the time used, and the horse must be returned. And, in support of the demurrer, it is contended that these disallowances are based upon the theory, whichit is contended is correct, that, the moment the arrest is made, the exPense at endeavoring ceases. The subsequent expenses are covered by the mileage allowed, of ten mile each for deputy, and guard. If the horse IS hIred, say, to go 20 mIles, and return, for a half of that sum is for the return trip, and is covered by the allowance for mileage. ' ',', "... : The question may be briefly stated thus: Is the expense of two dollars an amount whicq the deputy is compelled tei pay for horse and carriage in order to reach the place of urI'est? If this is answerable in the affirmative, it disposes of question in favor of the, petitioner. The items demurred to are all stated in the petition thus:
"U. S. vs. - - . Horse hire, endeavoring to arrest, disallowed; claimed to' have been covered by the transportation returning. That was not the case. In hiring a team to go to a certain place, the entire cost of the team Is for going only, the return Is simply incidental to the going. If the person hiring the team does not return, the cost is the same, as the team must necessarily return; and, if the person hiring desires to return with the team, it is his privilege to do so, without further cost."
And, although it involves a confused statement of fact with what is contended to be the law applicable thereto, yet I can but conclude that a contract of this nature cannot be thus divided and separated into two trips, with two separate sums,one payable by the United
PULESTON V. UNITED STATES.
States, and one persol'1ailyby the marshal. It clearly lies within the field of common sense to say that the hire of·a horse for a trip of this kind is a simple contract, calling for the payment of the stipulated hire; and under the terms of these contracts, as disclOSEd in the pleadings, it seems to be immaterial whether one rides 10 or 20 miles, whether one goes and returns by the same conveyance, or sends it back after arriving at the destination. If the party owning the conveyance could demand in advance the two dollars for its use for a day, clearly it is but an expense in endeavoring; and I cannot say that the record discloses circumstances relative to these items that lead to any other conclusion. The charge was no more than the statute permitted to be allowed. Rev. St. 829, cl. 18. There is no con· tention 'that the services were not actually rendered, and disbursementscharged were not actually made, in lawful money; and under the fuling of the supreme court in case of U. S. v. Harmon, 147 U. S. 279, 13 Sup. Ct. 327 (item 5), I think these items should be sustained as to the demurrer. 'Schedule C, items 1 to 14. inclusive. Fees for committing prisoners on writs and orders of court in writing under seal, issued by proper authority: (1) Commitments on order or warrant of removal from a jail to the place of trial, where prisoner had been previously com· mitted by commissioner in a county jail other than the place of trial; (2) commitments on writ of temporary commitment; (3) commitments on writs of attachment. , Item 1 is a claim for commitmentin Alabama, on a warrant of reo moval. It is claimed in brief by district attorney that a deputy marshal or marshal can do no legal official act outside of his district, and hence could earn no fee by suc,h act. By section 1014, Rev. St., it is provided, among other things, that:
"Where any offender or witness is committed in any district other than that where the offence is to be tried, it shall be the duty * ' of the marshal to execute a warrant for, his removal tQ the district where the trial is to be had."
And by section 1029, Rev. St.:
"Only one writ or warrant is necessary to remove a prisoner from one district to another. One copy thereof may be delivered to the sheriff or jailer from whose custody the prisoner is taken, and another to the sheriff or jailer to whose custody he Is and the original writ, with the marshal's return thereon. shall be returned to the clerk of the district to which he is removed."
These sections of the Revised Statutes expressly confer, on the marshalof the district where the arrest is effected, authority, and make it his duty to execute a warrant of removal when signed by the judge. He must either turn over the prisoner to the marshal of the other district, or commit the prisoner to jail there. Either would be a commitment into custody. The account states that the commitment was to the jail of Montgomery, Ala.; and it may be further stated that the accounting officers have allowed the mileage outside of the district, which would lead me to conclude that the government does 110t contend that the deputy had no authority, but merely that this is
Dot .as is contePlplated but uuder section 829, cl. 19, conclude it. is a proper charge. ..,. ' . ' . Items 2 to 5, inclusive. It does not appear clear to me upon the face of the record, what is the exact nature of these charges. Apparently they are correct, but in the briefs of counsel the matter is argued at length, based upon matter outside of the record. I do not desire to paBS upon this question while the record proper is uncertain, and the question not properly presented. In.. the remaining .items, 6 to 14, inclusive, the same question is in· volved as in Schedule H; and, under that head, I have taken up the discuJjlsiop, of the question here involved, and, under the ruling, these correct. D. Actual service of subprena on witnesses on thepart of the States, same having been issued by proper authority: (1) On' at the time in jail, under charge for offenses against the United. States; (2) upon witnesses at the time pnder bond to appear and answer another and different charge, but under no obligation to attend at time subprenaed for; (3) upon witnesses under no process. These charges are for service ofsubprena of witnesses for attendance i;J,l.criIqinal causes heard before a commissioner. Items 5, 6, and 7· seelD correct on their face, as the record .discloses that these witneSses were neither under arrest nor in attendance in othercaUSel!!. The demurrer cannot reach them. As to itemil2, 3, 4, and 12, it is contended that, first, where a person ha,s been committed by a a charge to llefpre the nextterm of the circuit court, that the is still subject to the verbal order of the commissioner for his production a" a witness before him in another cause, and that under section 1030,' Rev·. st., no fee can be charged for a subprena. But I cannot find anything either in the wording or the history of the passage of this seCtion that leads me to construe it to:cover a bearing or proceeding before a commissioner, but it to the circuit and district courts, and to prisoners then at the place of holding the courts. As applied to prisoners bound over by a commissioner, I cannot say, as a matter of law, that a jailer would be bound to deliver up a prisoner in his custody under commissioner's. mittimus.for trial before the circuit court, 1.lpon the verbal order of a deputy marshal, or of the commissioner transmitted vel" ballybythe deputy,or that it would be the duty of the deputy,without a.uy compensation, to go to a jail, and bring a prisoner into a eommissioner's court as a witness. It is at best very doubtful practice. In this instance the commissioner issued the subprenas. Whether it might have been superfluous or not, yet, if it was a lawful writ, the marshal was bound to execute it (opinion February 9, 1859, 9 Op. Attys. Gen. 265; opinion of May 16,>1840, 3 Op. Attys. Gen. 536); and, having executed it, the deputy.is entitled, under clause 5, § 829, Rev. St., to bis fee. , . '.. . A further question is,raised in HemEl1, 8, 9,. 10, and 11, where a party was 'before a 'cQmmissioner ona particular day, as a wit· ness or defendant, and a subpama had been issued by the commis· sioner for his attendance' in another cause, which ha,ppened. to be
tried on the same day as the case in which theperlilonwas already in attendance in. The contentioll' in these items seems to be that the marshal was presumed to know that the cases were to be tried on the same day when he received the writs of subpama, and that, as a matter of law, the marshal was under no legal obligation to serve subpcenas duly issued, and that a witness summoned in one case was under obligation, upon verbal instructions from the commissioner, to remain after the case in which he had been summoned had been disposed of, in order to testify in any other case which might subsequently have a hearing. It was further contended that .section 87:7, Rev. St., applies to hearings before commissioners; but this cannot be sustained, as the section expressly refers to the circuit and district courts. I cannot agrE!ewith· anyone of the foregoing propositions, and as to these items, upon the face of the record,it appears that these writs were properly issued and served, for which the marshal fee. is entitled to the Schedule F. It appears. that the court was opened pursuant to adjournment on Friday, June 26th, and from day to day thereafter, until the expiration of four days, in accordance with the provisions of section 671, Bey. S1. The marshal and other officers of the court, except the judl!'e, were present from day to day, including Friday, Saturday, Sunday, and Monday, each of which days the court was actually opened and a.djourned, as the minutes of the court disclose. For this Sunday per diem the marshal claims his regular fee, as on other days. The district attorney contends that, Sunday being al· ways dies non, this per diem is illegal, and the demurrer should be sustained; that section 671 does not contemplate the opening of court on Sunday; when it says from day to day, it undoubtedly means legal days. It may be true that Sunday is, in contemplation of law, "dies non," but this is not without many .exceptions, and I cannot say that the opening of the court on Sunday is legally void as to all purposes. The opening of court by the marshal is, at most, a ministerial requiring no judicial function. The performance of a mere ministerial act on Sunday is not necessarily void. It has been held that where, by the rule, four days are required in the reckoning time on notice of hearing, an intervening Sunday is to be included in the computation. So, also, as to time of payment of taxes. See Cressey v. Parks, 75 Me. 387; Taylor v. Palmer, 31 Cal. 240. Ina,,much as court was actually opened, and I cannot find that such proceeding was inherently void, I will overrule the demurrer as to this item. Schedule H. ActuaL mileage traveled from place of holding a term of court to place where a United States prisoner has been committed by a commissioner awaiting trial, with order or warrant of removal to another jail for confinement during trial at court. This matter has been brought to my attention several times before. "\Vllile sitting as judge of the circuit court, I have at each term of court been requested by the district attorney to grant an order for the reo moval of prisoners who had been confined in jail at places many miles from tIle place where court was then being held. This order was
granted, and the clerk directed to enter it upon the minutes. In addition thereto, I instructed the clerk to ,make three certified copies to be placed in the hands of the marshal. One of these was intended for the use of the whose ,custody the prisoner was to be taken from, one to be delivered to the jailer to whom the prisoner was to be delivered to await trial, and the third to be returned with indorsement of service thereon to the clerk of the court. It is contended by the district attorney that section 1030 of the Revised Statutes applies to these circumstances, and that it precludes any claim for a fee. But it seems apparent to my mind that this section has no application to these circumstances, and 1 can best express this conclusion in the words of the late Justice Jackson (then circuit judge) in the case of Taylor v. U. .s., 45 Fed. 538 (item 8):
"This Item · · · Is. confined to Instances only where the prisoners have been commItted by commIssioners for trIal to the jails of counties where the court Is beIng held. After the marshal has executed the commissioner's mittimus writ, It Is returned to the commissioner, and a copy transmitted to the clerk. Rev. St. § 1014. The writ upon Its return Is functus officio, and no further servIce can be had under It. The copy filed with the jailer Is hIs. The marshal cannot take the prisoner from such jail, and transport him, It may be for a long distance, without process. Nor do I thillk that section 1030 of the RevIsed Statutes applies to such cases. It Is as follows: 'No writ is necessary to bring into court any prIsoner or person In custody, or for remandIng him from the court into custody, but the same shall be done on the order of the court or district attorney, for which no fee shall be charged by the clerk or marshal.' This provision, and section 877, Rev. St., above quoted, are taken from section 3 of the .act of February 26, '1853 (10 Stat. 169), and were originally a sIngle clause, the first sentence of whIch applied to the summoning of witnesses generally on behalf of United States, their attendance before the grand and petit jUries, as required by the court or district attorney, until discharged by the court or district attorney. Then follows the provision in question that 'no writ shall be necessary, to bring into court any prisoner or person in custody [meaning, of course, a.' witness held In default of bail], or for remandIng him from the 'court into custody.' All this clause of the original section of the act seems" therefore, to relate to prisoners and witnesses after their arrival, and while in attendance upon a session of court. The separation of the provisIons into different sections (877 and 1030) of the Revised Statutes In no way affects their construction. Rev. St. § 5600. It would be unreasonable to presume that this provision was intended by congress to impose upon the marshal the burden and expense of transporting prisoners from distant counties to the court for trial, without 'compensation, or without the allowance of even such expenses as would be necessarily incurred b J' him. Here the removals were made under an order of court, as the statute provides. And, in construing this statute, the court, in ErwIn v. U. S., 37 Fed. 470, 487, unhesitatingly comes to the same conclusion, after a careful and painstaking examination of the whole subject, and a review of all the statutory prOVisions. This construction, limiting the operation of section 1030 to the place where the court Is held, seems to be the only reasonable one which can be given without working hardship never contemplated by congress. And, where the construction of these fee statutes 'admits of two interpretations. the words should be construed liberally in favor of the officer, and not strictly in favor of the United States.' McKinstry v. U. S., 40 Fed. 813 (opinion per Judges Lamar and Pardee). The mileage actually traveled in the execution of these orders should therefore be allowed petitioner."
Schedule I. Fees earned by special deputy in service of subpoonas, who had not taken oath of office, as prescribed by section 782, Rev. St., but who had been specially appointed and designated by the marshal for this particular service. The petitioner claims that sec-
PULESTON Y. UNITED STA'l'ES.
tion 788, Rev. St., confers the right to appoint a deputy in the same manner that a sheriff of this state might appoint a deputy. The section reads as follows:
"Sec. 788. The marshals and their deputies shall have, in each state, the same powers, in executing the laws of the United States, as the sheriffs and their depnties in such states may have, by law, J.n executing the laws thereof."
Section 1247, Rev. St. Fla.:
"Sheriffs may appoint deputies to act under them, who shall have the same power as the sheriff appointing them, and for the neglect and default of whom 1D executing their office the sheriff shall be responsible."
There is no provision of the Florida statutes prescribing any oath to be taken by a deputy sheriff before he is authorized to perform the duties of his office, and I understand it to be the practice not to require any oath. Deposit Co. v. Buddington, 23 Fla. 514, 2 South. 885. " In the schedule here contested, it appears that the marshal was compelled to appoint a deputy specially to serve some subprenas, and the deputy did not in fact take the oath prescribed by section 782. It has been several times held, in states where sheriffs may appoint special deputies to execute particular process, that service of process by a person specially deputized by the marshal to serve the same ill legal, and cannot be disputed by the person upon whom the service is made. U. So v. Jailor, 2 A'bb. U. S. 265, Fed. Cas. No. 15,463; The E. W. Gorgas, 10 Ben. 460, Fed. Cas. No. 4,585; Hyman v. Chales, 12 Fed. 855; Jewett v. Garrett, 47 Fed. 625. It would appear that section 788, Rev. St., confers on the marshal the same powers, not only in executing the laws of the United States, but in the method and manner of the execution. The appointment of a deputy to do a particular service is in the furtherance and a part of the necessary execution, and it appears a fair construction of section 788 to confer an additional right in the manner of .appointment and qualification of a deputy marshal. Schedule L. Sleeping-car fare for marshal, as an actual expense in transporting prisoners to penitentiary out of the state. It appears that the marshal was transporting prisoners to the penitentiary at Columbus, Ohio, a trip of 36 hours from Pensacola. He had employed guards, and during the trip took a berth in a sleeper. It is claimed on the part of the district attorney that it was his duty to continuously guard his prisoner during the 36 hours' travel. I do not think that the law imposes any such duty. It authorizes the employment of an additional guard for each prisoner. Under section 829, cl. 21, Rev. St., the marshal is allowed his reasonable actual expenses. And to say that a marshal is not entitled to sleep on a trip of 36 hours, but must stand guard all that time, is absurd. The ac· count for sleeping-car fare is always allowed army and navy officers, witnesses on actual expense, district attorneys, marshals when otherwise traveling, and, in short, in all instances where government officials are on actual expense. The marshal, for this service, receives no compensation. His services and time are gratis, and it is but common justice that he should be allowed an opportunity to sleep as other travelers sleep, and to be reimbursed for the expense.
, 85,FEDERAL UEf'ORrFER.;'i"
,Schedule; M. ,Expense' of:, proving is, .for; affida:viits; certificates,f;ltc., to accountfl'-'incurred by marshal after the passage, of act of congress of May 28, 1896, allowing marshal sal\1·vy in lieu of all fees and expenses, claimed as an actual expense. The petitioner claims that after the passage of the act of May 28, 1896, he became entitled to be reimbursed for all actual and necessary expenses in and about the conduct of his office, if it could be fairly presumed that it caIlle the. purview of ,section 14 of said act,. ev:en thoug.h not expressly, by the attorney general. Section 14 of saId act reads: "That the necessary ,office expenses of the *., ,* ,* marshal shall be. allowed, when authorized by the attorney general." I canIl;ot suppose 'that the attorney general necessarily has to pass on a specific item, but, may provide genei'l;ll rules relative thereto. ,Tn his instructions to the marshals, he req1}.ires the accounts of the marshal to be sworn to ina particular manner, although the law requires them to be sWOrn to, and furnishes the marshal with the necessary paper, forms of oath,etc.; and from this itJrtay fairly be inferred that the expenses of the oath and certificates 'have been authorized. It is contended that the oath is one requi!'ed by law, and" under the ruling' in the cases of U.S. v. Allred; 155 U. S. 596, 15 Sup. Ot. 231, and U. S. v. Van 140 U. S. 171,1l Sup. Ot. 758, that the officer must bear the expense. In viewol the fact tpat tp.e supreme court was passing upon the question of expenses of rendering the accounts of a marshal as a fee officer, and who had to bear all the expenses of his office, the court, in speaking of this question, says:
"It follows from tbis section [18 Stat. 333, c. 95] tbat tbe 'Officer bas performed bis duty by 'rendering' bis accounts in proper form to tbecourt, witb the proper affidavit or oatb in support of tbe actual and necessary performance of tbe servllces therein cbarged."
'But, viewing the changed relation of the marshal to the government, the fact thathe now draws a salary in lieu of all fees, which it seems the plain intent of congress should be regarded as a net salary, and inasmuch as it appears that provision has been made for all office expenses, actual expenses while engaged in service of all writs, while in upon court, I cannot see but that to make an exception of the item would work a hardship never contemplated by congress, and to which the supreme court never intended this principle to apply. This view of the question was taken by the auditor recently, in which he says:
"The affidavit is required by' section 13, Act May 28, 1896. As the account is for reimbursement of the actual expenses of a salaried officer, I decide that the charge is a propel' one, and in accordance with the practice in the case of all salaried officers." 3, Dec. Compt. 430.
As the expense was an office expense, I think he properly paid the amount, i.nstead of requiring the officer taking the oath to render an account therefor directly to the government. This' seems to be the method with other expenses. This disposes of all questions properly raised by demurrer. An or. dermay be entered overruling the demurrer.
BBEYMAN V. ANN ARBOR B. CO.
BREYMAN et at v. ANN ARBOR R. CO. (Circuit Court, N. D. Ohio, W. D. June 25, 1897.)
CONSTRUCTION OF CONTRACT-PRINTED FORMS-REPUGNANT PROVISIONS.
In a contract for a railroad fill, made out on a printed form of construction contract used generally by the railroad company, where the material Is to be taken from known and prescribed distances, between named streets in a city, close to the place to be filled, and there is a written stipulation for a fixed price per square yard of earth, a further printed clause, allowing compensation for hauls in excess of 600 feet, may be rejected as repugnant,and as having been left in by oversight, where other written provisions seem to make it Inapplicable, and the parties, during the progress of the work, have ignored it. '
Under a filling contract which provides that all work done during each month shall be certified to by the railroad company's, general manager ItS , being In accordance with the contract,payment thereupon to be made for the same, less 10 per cent., to be reserved until, final completion of the work, the monthly certificates of the general manager are to be taken as correct and conclusive (In the absence of any charge of fraud, collusion, bad faith, mistake,or gross ,negligence), so as to preclude the conafter entirely ceasing work, from asserting for the first time a extra compensation for alleged overbauls of material. claim
Thijl action at law by Oharles H.;Breyman and George W. Tonson, contractors under the firm name of O. H. Breyman & Co. against the Ann Arbor Railroad Company, to recover money alleged to be due for work done under a contract for the construction of a fill.
The contract under which the work was done contained the following proVisions, among others: "First. The contractors agree that they will construct, build, and in very respect complete all the gradIng and other wor:k, to fiU the low lands lying between Lagrange ana Cherry streets and' the east line of Seneca street and a line drawn parallel to and one hundred (100) feet easterly therefrom, and any other embankments or fills which the first party may desire made between Magnolia and Cherry streets in the city of 'Toledo, Ohio; that they will take the material necessary for this work from any point which the engineer in charge may designate, between Manhattan road and Lagrange street, on or adjacent to the line of the railroad of the party of the firSt part; and that all borrow pits so made shall be left in such condition as to surface as the engineer in charge may direct. It is understood that all material so handled in this district shall be put in place, as directed' from time to time by the engineer in charge ofihe work, for and in consideration of fourteen (14) cents per cubic yard. 'The first party agrees on its part to fUrD.1sh the necessary rails, fastenings)' spikes, and ties, and put them on the ground adjacent to its roadbed near Elm street. First party also agrees to furnIsh, free of charge to the contractors, two engines, suitable for moving their dump cars; also fuel and supplies necessary to, operate these locomotives, but not help. All work shall be done in strict accordance with the aWlexed which are signed by the ,hereto, and are made a part of this agreement, and are hereby declared and accepted as an essential part the same. All of the said work to be done under the direction and InsP,eCtion of party of the first part's engineers to superintend. thesame,j!nd to the full satisfactioJl. and acceptance of party of the first general manager." SaId cohtract further provided as follows: "The the first part, III consideration of the true and faithful of the covenants and agreements made by contractor,