GAYER'll. UNITIW STATES.
625
GAYER "'. UNITED STATES.
(Distriot Court, E. D. South Oarolina. January 12,1888.) 1. COURTS-FEDERAL JURISDICTION PENSATION. ELECTION SUPERVISOR-AcTION FOR COM
The district court has jurisdiction of an action against the United States for services and expenses of a chief supervisor of elections. upon a claim for less than $1,000 in value, which had been refused by the accounting officer of the treasury department.
2.
S; 'SAME.
A supervisor of electionS is not entitled to fees for preparing and pre, senting applications for supervisors for the approval of a judge. Buth,e, is entitled to fees for filing and indexing s,uch applications. under ReiV. St.· § 2081, allowing for filing and caring for every return, * * * document, or other paper. 10 cents, and for entering and indexing the records of hi's 'office 15 cents per folio. ' He is also entitled to compensation for indexing and filing letters and papers. '
,ELEOTIONS-CHIEF SUPERVISOR-COMPENSATION.
4.
SAME.
5.
He is also entitled to a per diem of five dollars for 26 days' service, notwith· standing the attorney general, with the sanction of the president, limited the number of days' service of supervisors to five, as he is not properly a supervisW:· , lIe ill .not entitled to fees for filing and indexing appointments of supervisofa, but is en-titled to fees for recording the same. lle is ent,itled to fees for,administering oaths to supervisors, and for certifi· cates, seals, etc., appertaining thereto. He is entitled to fees for preparing and forwarding instructions to super· visors: He is 'entitled to the value of blanks furnished by him and used in his office, but not to the value of ordinary stationery so used. " , , ' "" ' , ,"
6.
'1.
a.SAME.
9.
10.
lIe is not entitled to an amount paid for assistance on account of his poor health.
Action by a chief supervisOl for fees and expenses incurred in performing the duties of that office. J. P. K; Bryan, for L. p'. YoUmans, Dist. Atty., and H. A. De SaU88Ure, Asst. Dist. Atty., for the 'United States. SmONToN, J. This is a suit against the United States brought in this court'up6na claim for services rendered pursuant to the provisions oract of congress, a.pproved third March, 1887. PLEADINGS.
The 'complaint alleges that plaintiff was chief supervisor ofelections for the state of South Carolina, and acted as such between first July, 1886,abdfirst December' ofthesame year; that he perfol'med services in his said office for the government, and duly presented to the accountv.33F.no.11-40
626
FEDERAL REPORTER.
ing officers of the treasury his accounts therefor, approved in proper form, of this ;acpount there was allowed and paid aggregating to him $136.10, and that the remainder was disallowed; that the sums disallowed were charged according to law, and are justly due. For these, $.926.05, he brings suit. , , The ans'weradmits that plaintiff was chief supervisor as stated, and approval as statedj demands strict proof disallowa*es, arid denies that the of toe. sums disallowed constitute any claim against the ,United, States. For a second defense the defendant asserts,thllt ,this disallowance is a bar to the jurisdictiotfbfthis court. defense the1\nswer declares the disallowances to be correct, and iIiaccordailce with' law. Fora fourth defense,ihssept8 that the attorney general, with thl! sanetion of the president, had',limited the days ofthe gerviceof supervisors to the number of five days', :'ttiid that the charg'e pet'diem fora number of days cannot be allowed.
"OF FACT. TheplalntHf'wRs chief ,qf.electiolls' .n{so'iltb Carolina, for the general election of 188S, duly appointed. under section 2025', Rev. St. The circuit court was opened under the provisions of section 2011. Rev. ()f October, l88,6 tg)msiness on ele\i'enth October, 1886, and continued open under sections:2012 and: 2013 until third day of November, 1886.rhe plaintiff discharged the duties pre"scribed up to:'and:JuqludiIlg after, the and forwarded his account therefor,whereupon the disallowances were made. ·:The items disallowed aTe as £onaws: ' N0.1. Preparing and presenting for approval 54 applications forappointment of supervisors. No. 2. Filing, s&me., hlilts, the'iridexing dIsallowed. No.3. Indexing and filingJ28 letters and papers. No.4. Per diem as chief supervisor for 26 days, at five dollars per day. ,No.· 5. IFilihg '54 orders for appointment as superVisors and iri.dexing the same. No.6. Recording the same orders. No.7. Filing, indexing, anq reco,J;dillJtappointments sppervisoxs..", No.8. Administering oaths to 24 supervisors, and recordmg the ,No.. 9. Twenty-two marshal, certified copies of appointment of supervisol11 for .filing, recording' th,e , No. 10. and forwarding instructions to 689 supervisors. No. 11.:B,iUJor, stationery all:d blanks. (This bill includes all articles of stationery used in an office,,n;mcilagejlink f (;ll,"asers, pens, pins, paper,-note and'capj-pencil,s, seal, as also envelopes, and printed supervil:lors, the application for' appointment of,uptifica.tiol1 to of theirappointment, oaths of, instructions to, and certificates of, supervisors.) No. 12. Payment of H. P. Locke as assistant and messenger; 35 days, at $2.50 per day. AU·' of, these/items were proved, and, the services. therein stated were rendered·. The account was, presented in open. court,preparatory to forwarding to the department, on tenth March, ,1887, and! was sento.nafter that date.
G.A,YER 'II. UNITEDSTA.TES.
627
C',ONCLUBIONS OF LAW.
Is this case within the jurisdiction of this court? This court has jurisdiction over all claims not exceeding $i1,OOO, upon any contract, express or implied, made by the United States, for the breach of which the ether contracting party could have had redress iu any court, if the United States were suable; excepting, however, war claims, and any other claims heretofore rejected or reported upon adversely by any court, department, or commissioner authorized to hear and determine the sa:me. 24 U. S. St. at Large, 505. This is not a war claim, nor was it presented for approval, until tenth March, 1887; and, therefore, at the date of the act (March 3d) had noi heretofore been passed upon by any court, etc. Nor can the position of the district attorney be sustained, that the court cannot 'entertain this case because it has already been decided by the department. U. S. v. Smith,l Bond, 68. It is questionable if the court could-it certainly would not-entertain such a claim as this, until it had been presented to, and had been passed upon by, the department. Tbe action'of the department does not conclude the court. U. S. v. Wallace; Hq'U;; S; 398, 6 Sup, Ct. Rep. 408. - ,2. The chief supervisor must be appointed from among the commissioners ofthecourt. Rev. St.§ 2025. He does not cease to be a commissioner when so appointed. Indeed, he is appointed because he is and cantinues-tobea commissioner.' Section 2031. And his accounts are made out, vouched, examined, a.nd certified as are the accounts of a sioner. Id. Having had'itnposed on hirrrthe peiformanceof services as chief supervisor he ex'eroises the functions cohnectedwith of this office in connection with and aided by his function as commissioner. Section 2021. For his extraordinary services as chief supervisor he is allowed the compensation fixed by section 2031. If, in ing these, he docs duties as commissioner, provision for which is not made in this section, he is entitled to the compensation of a commissioneras fixed by section, 847. In reConrad, 15 Fed. Rep. 641. In the light of these conclusions let us examine the items disallowed. ":No; .1 ... For preparing and· presenting for 'approval of judge 54 applioations for supervisors. It is no part of his duty to prepare applications for supervisors. Indeed, the,section 2026 contemplates the receipt by him of the applications of others; the consideration, examination, and presentlltion whereof must be made by him; so that the preparation of them may be in conflict with his duty. The charge for preparation cannot be allowed. His compensation for receipt,ex!1.mination, and presentation of them. is provided for in his per diem and in other ways. No. 2. Filing and indexing the 54 applications above. Section 2026 directs the chief supervisol' to receive the applications of all parties for appointment as supervisors, and, in presenting the applicationrhe is bound to; fUl'llish information'to the court respecting the applicants. By section 2031 he is allowed iorfiling and caring for report, record, document, or other paper, 10, cents, and for entering and index;. jng thereeo:rds afhis office,- 15 cents· pedoHo. These applications come
628
within the words "document or other paper," and certainly are records of his office. This item is allowed. ' No.3. So also with the third item,-indexing and filing 128 letters and papers. They come within the same rule, and the item must be allowed. No. ,4. Per diem for 26 days at five dollars each. The district attorney has urged upon the court, under the instructions of the department of justice, this consideration. The attorney general, with the sanction of the president, limited the number of days of the service of supervisors to five. It is insisted that the chief supervisor comes within the category., This cannot be the correct conclusion. The chief supervisor is not a supervisor at all. He discharges none of the duties of a supervisor. He iSR commissioner appointed over the supervisors, detailed on this dilty. He must discharge duties anterior to any appointment of supervisol's, and must continue to perform services in and about the appointment of them long after some have been appointed. ,Sections 20262028.'l,'he supervisors have but one ,duty, in and about the election itself; and during the days of balloting and canvassing the'votes. The chief supervisor has other distinct duties, requiring more time, and .in. volving greater responsibility. Section 2031 provides certain fees for the chief supervisor. Then it adds a provision for compensating supervisors of election, confining this, however, to only a certain class of these,-those appointed for towns or cities of 20,000 or more inhabitants. Clearly, only such persons are here alluded to as supervisors of election as are provided for in sections 2026-2028, under that name. As we have seen, the chief supervisor is a commissioner appointed because he is a commissioner. compensation as chief supervisor is not exclusive of, but in excess of, and apart from, his fees as commissioner. Section 2031. Can it be that the government would require a commissioner to give of his time, and not compensate him? As he would be entitled as commissioner, when engaged in his official duties, for servides analogous to these, to a per diem of five dollars, he is allowed the same here. 'Nos. 5 and 6. Filing 54 orders for appointment of supervisors and indexing the same; recording the same. ,These orders belong to the court, are of its. records, must be filed in court, and 'not with the chief supervisor. But he should have among the records of his office the names of all supervisors whom he must overlook, who are subject to removal, and in whose list vacancies may arise., He should enter and index, such lists among the records of his officejand for this he is allowed 15 cents per folio, by section 2031. Item 5' 'disallowed; item 6 allowed. No.7. So with this item, filiug, indexing, and recording appointments of 687 supervisors; :there is allowed 15 cents per folio for entering and indexing these. . , tNos. 8 and 9. Administering oaths to 24 supervisors for the United States marshal, seals, filing, indexing,and recording same. !fhese were required of him as chief supervisor by the ma'Cshal, unner instructions from the department of justice. The aflidavitswere
/
HYMAN 'V. WHEELER.
629
taken by him, and as to be chief supervisor he had to be a ,commissioner, ex necessitate he could administer an oath. Items allowed. No. 10. Preparing and forwarding instructions to 687 supervisors. Under section 2026 he must prepare them. As commissioner for preparing papers he is allowed 15 cents per folio. For each copy out of hil:l office, under section 828, he, is entitled as commissioner to 10 cents per folio. This much is allowed. No. 11. No provision is made for the ordinary stationery used by the chief supervisor, or by any commissioner. He is required, however, to furnish blanks, etc. For these ex equo et bono he must be paid. For pens, ink, note paper, etc., he cannot be paid. If the amount allowed by the. department on this item-$35.25-covers these blanks, etc., the rest is disallowed. If not, so much as will cover them is allowed. No. 12. Payment to H.P. Locke for 35 days, for services as aSE'istant and messenger. No authority can be found for this, either in the law for cbiefsupervisor or for commissioners. It has been argued that the cir· cumstances of the destruction of the room of the chief supervisor, occupied by him as commissioner,by the recent earthquake, and the health of the chief supervisor, made the services of a clerk and messenger necessary, and that this charge comes within the implied contract to furnish eYerything necessary for the discharge of the duties of the office. I apprehend that at the farthest, those things are implied which necessarily were in contemplation of both parties ,at the time of the appointment. When one is appointed to discharge an office, he is expected to do its duties himself; and if his health fail, and he must employ assistance, be must pay for such assistance himself. There waa 110 implied contract to pay for a messenger, and no authority for employing one. The item is, disallowed. Let a decree be taken in accordance with this opinion.
HYMAN tl. WHEELER
ec al.
(Oircu" OQ'Urt, D. OoloTado. January 13,1888.) EQUITY-:PARTmS .DEFENDANT-DEMURRER-UNITY o"INTEREST.
A bill in equity showing that complainant owned a mine, the mIneral veIn of which had its apex Within complainant's boundaries, but in descending deflected and passed out of his side lines; that defendants. of whom there were a number, were threateJ;ling litigation on claimsJ\) the vein in various forms; that defendants' claims, though differing between'themselves, wereo.ll subordinate to plaintiff's claim:; and seeking equitablerelief.-is not demurrable as showing no unity of interest in defendants, and no equityiD complainant.
In Equity. On demurrer to bill. Bill in ,. equity by, H.rman, complainant, against Wheeler and others, , .defendants.
O. J. Hug1iea,Jr·. ,Jor
