IN
RE MOY CHEE KEE.
377
In Equity. On exceptions to master's report. A claim was filed by E. L. Dehoney against the receivers of the Texas & Pacific Railway Company for damages caused by the burning meadow by fire ignited by a locomotive of the railway in passing.. The daim was for $2 an acre damage to the ·meadow, and' $40 for 4 acres of millet destroyed. The master allowed the claimant the $40 damage to the millet, but nothing for general damages. The claimant excepted to the master's report. Foster & WilBon, for claimant. W. W. Howe, for receivers. PARDEE, J., (Mally.) The evidence in this case is not sufficiently certain as to the extent of damage by fire to the meadow which was bUrned ()ver. The meadow had been mown, and the grass was dried out by the weather. A fire was likely to do no injury except by kindling the roots of the grass. The evidence shows that after the fire the grass did not <lome up in spots. How extensive the spots were, and failure in such .spots was on account of the fire or the drouth, does not appear with any such certainty as to furnish the basis for the master or court to assess the damage. The complainant should have made his case and the extent of his damage reasonably certain by proof. The exceptions will be overruled and the master's report confirmed.
In re.Moy CHEE KEE et al. (CircUit Court, N. D. California. 1887.).
1.
COBTS-:::IN
IIABEAS CORPUS PROCEEDINa-,-REV. ST. U. S. § 828. . .t\n for a writ of· habeas CorPUB is a proceeding Bui generiB, and the provisions of Rev. St. U. S. § 828, regulating the fees of clerks of the circuit and district courts, do not govern in the t.axationof costs in such proceedings. , . . .
2.
SAME-DISCRETION OF COURT.
The court'. in its discretion, may fix a reasonable fee to be paid by the petitioner in habea, CorPUB cases, which fees, when collected, are to be accounted for as in ordinary cases.
On Writ of Habea8 Corpus. Application to tax costs. Th08. D. Riordan and L. I. Mowry, for petitioners. John T. Carey, U. S. Atty., for the United States. Before SAWYER, Circuit Judge, and SABIN, District Judge. SAWYER, J., (SABIN,J., concurring.) The petitioner is a. subject of Chins, of the Mongolian race, who, on arriving at the port of San Francisco, on the steam-ship City of Sidney, from China, inSeptember, 1887 ,claimed a right to land under the treaty and laws of the United States. The colwrit o(hah.eas lector having refused to pel'lllithim to land, he sued
878
FEDERAL REPORTER.
coryusin this court, and,after examination, was discharged by the court.
At'the time OfiSBUiIig the writ, the'attorney for the petitioner, upon therequest of the clerk, asnsual in such cases, since January 1,1887, deposited with the clerk, the sum of $15, upon the understanding, on the part of the attorney and the clerk, that the fees properly chargeable at the COllclusioll of the proceeding, would be paid out of the deposit, and any surplus remaining returned to the attorney, It was understood by both clerk and counsel that this sum was a deposit only, for the purpose indicated. The question as to what amount of fees is properly taxable, has never been determined by the courts, and different opinions are entertained on the point by the clerks of the circuit and district courts; and even the attorneys themselves are not fully satisfied on'this point. It was their busines& a.nd duty to presentthe question for adjudication; but it was, perhaps; from press of business, omitted fo be done; consequently, the question asto how much should i be taxed in these cases has never before been brought tb'the attention of the court. The tlounsel' for the petitioner now asks tbat the costs be taxed by the court, and limited to eleven dollars, and tbatthe remaining: four dollars be returned to him as belonging to his client. The clerk is 'ready and willing to return that amount, if $11 is the sum properly 'taxable, and he can return it ,without being held responsible for the whole $15 to the government. The parties now present this case and- many similar cases, and request] the court to make a proper taxation of the costs, and such order in the case as the rights of the parties require. The clerks of the two courts, district and circuit. have heretofore supposed that the proper amount to be taxed depends upon the question whether the fees should be taxed under ona Qr the other of two clauses of section 828 of the Revised Statutes, the first clause of which provides fees "for makingidookets, and indexes taxing costs on the trial or argument of a cause where i8 joined and teatimony given, three dollars; "-in this cir(luit, six dollars:. ,second clause for doing the same things, in a cause "wherejudgment or decree is made ,or rendered 'IJJ'itlwJI,t issue, one dollar;"in this circuit, two dollars,which makes a difference of four dollars in the costs properly taxable in each case. The clerk of the district court thinks and acts upon the idea, that the firstclauseis appli.cable"while the clerk oftlhecir-euit court thinks there is no issue within the meaning of the statute, and the smaller sum only should be taxed. under the second clause; but for his own protection he receives a depo$it of $15 to cover all' costs that may be found taxable, till an authoritative ruling is had ' upon the point. After a careful consideration of the question, we think that the case does not come uridereither clause; and, further, that section 828 of the Revised StatuteS 'does not apply to writs of kabeascorpusatall. It appUes only to the ordinary litigation in the courts in common law, .and" other .ordinary'litigation where there are parties htlgatmg some rIght between them, and where the prevailing party recovers his· Costs of his opponent,-eases wherein there is it plaintiff and a' defendant in the ordinary sense of these terms. i, 'If the petitioner is Ii plaintiff, and the party making the return is a I, '
IN R.. EMQY CREE. KEE.
,879
defendant, in the ordinary. sense of these terms, and .the section is applicable, then the petitioner, when he is discharged, should recover ,his CQsts against the party detaining him, and. when remanded, the party tQ whose custody he is remanded should recover his costs against petitioner. Section 983, Rev. St. But nothing of this kind has ever been done in any habea8COrpU8 cases of any kind in this or any court, so far as we are aware. Some time ago, in one of the habea8 CorpU8 cases arising underthe laundry ordinance, where a party held in custody by the sher. iff was discharged, his counsel demanded a for costs against the sheriff. Upon examination, the court became satisfied that it was not the practice for the party .succeeding to recover costs from his oppone1)t, if opponent he can be called. The court was assured that in the .state courts no costs are recovered in such cases. This class of cases, with respect to fees, is like naturalization cases, sui generi8, in which the United States supreme court, in a case elaborately considered, recently unanimously decided that the clerk's fee-bill, provided for in section 828, had no application,-that this, and other cognate provisions of the statutes; only apply to "ordinary suits between party and party prosecuted in court." It was held that there was no provision prescribing or forbidding fees in naturalization cases, and that the amount was left to be fixed at some reasonable sum in the discretion of the court. U. S. v. HUl, 120 U. S. 169, 7 Sup. Ct. Rep. 510. In our judgment, this case, in regard to theextraordinay writ of habeaa (;orpU8, which under ordinary circumstances is seldom invoked,standl'l upon precisely the same footing. Like naturalization cases, habea8 CorpU8 cases are special cases, and, nowhere mentioned in the fee-bill. There is no provision authorizing or forbidding the taking of fees in these cases. There is in fact no legal necessity for these cases to come into court at all. The judge can issue the writ, and hear and dispose of the case at chambers, doing clerical work himself without the intervention of the clerk at all; in which case there would be no fees. This cannot be done in naturalization cases. But, from considerations of convenience, and for the purpose of keeping a record, and. the avoidance of so much clerical work {)n the part of the judge, this course is seldom pursued in habea8 corpU8 cases. Indeed, in this class of cases, it would impose so much non-judiciallabor on the judge as to rend er it impracticable. As the clerk's time, services, and ,stationery are required in issuing writs, filing returns, swearing witnesses, enteJ;ing orders and judgments, and making a roll and record, it is but proper that he should be paid by the party requiring those undoubtedly may be cases on habea8 COrpU8 where, under peculiar circumstances, it would be proper, and even necessary, for the court to require the performance of this service without compensation. The writ is.a writ of right, and parties without means and without fault, may find themselves in a position to render it necessary for them to invoke the aid of the writ without charge. But this is not of that "class. During this year these cases require more than half thelabor, and entail more than one-half the expense, on the clerk's offices. The writ is used to enforce a civil right under the treaty and the laws. The parties
380
BEPoRTER.
interested knowinglY and voluntarily take the risk when they come here, and they should certainly pay the necessary costs in these cases. As 'there is no statute providing what the fees should be, under the ruling of the supreme court in the case cited, it is competent under the same ruling for the court to fix it at some reasonable sum, which may be in items, or a fixed sum for each elise. We know of no better or safer way. than to adopt, by analogy, about the fees for precisely similar service as provided in section 828 of the Revised Statutes. As it is not quite clear which of the two clauses quoted at the commencement of this opinion would govern, were the provisions of that section applicable, and as there is usually but little time occupied in taking testimony in each case, we will adopt, substantially, the one providing for the smallest amount. Adopting, by analogy, the rates established, the taxable fees will not ·vary much from $11. Some may be a little less, and some a little more, but not much either Way. And to save the time and trouble of special taxation by items, and the labor of so much book-keeping by items, we will tax the fees in each case brought to a hearing and decision thereon at $11. In adopting eleven instead of fifteen dollars as the taxable costs, we do not desire to be regarded as in any respect criticizing the action of the clerk of the district court in collecting fifteen dollars.' There was good ground for doubt upon the construction of the statute, and it was perfectly proper for him, in the absence of any authoritative construction, .to be on the safe side, and even if $15 should be adopted by the district court, instead of $11, we do not think there would be any reasonable · ground for complaint. If we are:wrong in the views expressed, that the section of the statute referred to, (section 828,) is inapplicable to this class of cases, still we think the costs should be taxed under the last clause, · which would lead to substantially the same result. The proceedings are .special and peculiar, and &0 different from those in ordinary litigation, that all the provisions cannot be literally applied. Like proceedings in naturalization cases, they are sui grmeri8, to which the provisions of sec-tion 828 do not apply. We can only apply them by analogy; and we ,:think the last clause cited more nearly analogous than the first; As · those fees are for official service, they are part of the official income of ·the clerk, as clerk, and, like other fees, are to be accounted for as has been always heretofore done to the government; With the surplus deposited by the consent of parties, and held till the proper amount of fees to be collected should be autho-ritatively determined, the government has no concern. .It is ordered .that the fees in this case be taxed at $11, and that in all 'other cases arising in the year 1887, brought to a final hearing and a decision thereon, in which the fees have not yet been finally adjusted with the attorneys, and all such cases hereafter arising, the fees be taxed at $11 ,and that the clerk, in his returns to the government, in all such cases, acco'unt for $11 per case, and that the remainder of the deposits in the . hands of the clerk. after paying the sum taxed as' costs, be returned to the attorneys for the respective petitioners and owners.
GOTTSBERGER v; ALDINE BOOK PUB. UNITED STATES V.
CO.
381
DOUGLASS.
(District Oourt. B. D. South Oarolina. January, 1888.) POST-OFFICE-POSTMASTERS-USE OF STAMPS BY.
On the trial of an indictment against a postmaster for the illegal use of postage stamps, held, under 1 Supp. Rev. St. U. S. c. 259, p. 359, relating to the postal service, that it is unlawful for a postmaster to make any disposition of stamps intrusted to him, except the sale of them at their face va) ue for cash to third persons.
Two Indictments against defendant, Edgar 1. Douglass, postmaster, for illegal use of postage stamps. L. F. Youmans, Dist. Atty., for the Government. E. W. Morse, for defendant; SIMONTON, J., (charging jury.) You are trying two distinct cases against the defendant, who was postmaster at Statesburg, in this state. One of these-the indictment-charges him with using in the purchase of merchandise, and in the payment of debts, postage stamps which had been intrusted to him as postmaster. The other-the information-charges him with including in four quarterly returns to the post-office department the stamps so used by him, reporting them as canceled stamps, with the fraudulent intent of increasing his compensation as postmaster. The cases are brought unde{' chapter 21:\9, Act Congo seventeenth June 1878, (1 Supp. Rev. St. U. S. 359.) The defendant, testifying on his own behalf, admitted that he had used stamps on several occasions in paying for merchandise, and remitting money, for the purpose of making change. He says that he did this not dreaming that it was wrong, and that in every instance he had put the money value of the stamps so used in the till of the post-office, in fact thus purchasing the. stamps from himself. The act of congress forbids any disposition by a postmaster of stamps intrusted to him except the sale of them at their face value for cash to third persons. He cannot use them in the purchase of goods or in payment of debts; nor can he purchase them from himself for any such purpose. By his own admission, therefore, he has violated the law, /l.nd if you believe himyou must find him guilty on the indictment.
GOTTBBERGER
V.
ALDINE BOOK PUB. Co. V.
SAME
ESTES et ale
(Circuit Oourt, D. Ma88achu8etts. December 19, 1887.) OOPYRIGHT-ABANDONMENT-PUBLICATION.
Evidence showing that plaintiff had sent a number of copies of a work to booksellers and private individuals, for examination, before acquiring a copyright, lind had in one instance accepted the purchase money, cOnstitutes a public&tionwithin Rev. St. U. S. 4956, which provides that no person shall be entitled to a copyright unless he shall, within ten days from the publication .thereof, <leliver two printed copies of the book to the librarian of con.gress. . . ,
