Harmon v. United States

• Citation: 43 F. 560
• Parties: HARMON v. UNITED STATES.
• Decision Date: 23 September 1890
• Court: U.S. District Court — District of Maine

43 F. 560

HARMON v. UNITED STATES.

United States Circuit Court, D. Maine.

September 23, 1890

Edward M. Rand, for petitioner.

Isaac W. Dyer, U.S. Atty.

Before GRAY and COLT, JJ.

GRAY J.

This is a petition under the act of March 3, 1887, c. 359, (24 St 505,) to recover $1,770.60, fees and disbursements of the petitioner, while marshal of the United States for this district, from March 9, 1886, to October 1, 1888, which were included in his account presented to the district court proved to its satisfaction by his oath, and approved by that court, and forwarded to the first auditor of the treasury and by him to the first comptroller, and disallowed by the latter, and are set forth in detail in schedules annexed to the petition. The United States, by a plea in the nature of non assumpsit, put in issue the petitioner's right to recover. The United States filed the following admission in writing, signed by the district attorney:

'In the above-entitled cause it is admitted on behalf of the respondents that the services charged in the petition and schedules were actually rendered, that the disbursements charged were actually made in lawful money, and that the sums charged as paid to witnesses were actually and in every instance paid upon orders issued in due form, either by the court, or by a commissioner of the circuit court, in the respective cases.'

The counsel for both parties signed and filed the following agreement and stipulation, entitled 'Agreed Statement of Facts:'

'In this case it is hereby stipulated and agreed as follows viz.:'

'First. As to jurisdiction: Of the total amount claimed by the petitioner, items amounting to $140.32 were disallowed by the first comptroller prior to March 3, 1887.

'Second. As to the items claimed: They are correctly classified and set forth in the abstract of schedules annexed to the brief of the petitioner, the substance of which is as stated below.

'Third. As to the several classes of claim: (1) Distributing venires, paid constables, $20. Said amount was so paid. (2) Distributing venires, marshal's fees, $186. If the marshal is entitled to a fee of $2 for each venire distributed to the several constables, he is entitled to the amount claimed. But it is claimed by the respondents that said amount was erroneously charged in the marshal's account as mileage, and was for that reason disallowed by the comptroller. (3) Paid for blanks for U.S. attorney, $14. Upon requisition of the U.S. attorney, approved by the attorney general, this amount was paid by the marshal for blank indictments and informations for the necessary use of the U.S. attorney. A similar charge has since been allowed by the comptroller. (4) Marshal's travel to attend court, $156.60. Of the amount claimed, $118.80 is for travel to attend regular terms of the circuit and district courts; and one travel, $1.80, has been allowed and paid to the marshal for travel at each of said terms. Said $118.80 is charged for travel on days when said courts were held by adjournment over an intervening day, and were not held on consecutive days. The remaining sum of $37.80 is charged for travel to attend twenty-one special courts or special terms of the district court. The docket of the district court shows that said twenty-one special courts or special terms were duly held. (5) Expenses endeavoring to arrest, $4. This charge for two days at $2 was disallowed by the comptroller, solely because he claimed it was not charged in the proper account. (6) Travel to serve precept, $227.60. In some instances the officer had in his hands for service several precepts against different persons for different causes, and made service of two or more of such precepts in the course of one trip, making but one travel to the most remote point of service, but charging full travel on each precept. The following item, viz., '1886, April 24. In U.S. v. Jeffrey Gerroir, travel to serve subpoena from circuit court, Massachusetts district, at Cranberry Isle, 314 miles, $18.84,' is suspended by the comptroller because the only actual travel was from Portland to Cranberry Isle, say 206 miles. If travel as charged is not to be allowed, then this charge should be for 206 miles, $12.36. In serving a warrant of removal (in every instance within this district) or warrant to commit, the marshal has charged travel, while the comptroller claims that, transportation of officer and prisoner being allowed, no travel can be charged. (7) Service of precepts, $63. The several precepts were duly issued by the court or a commissioner, in accordance with established usage. It is claimed by the comptroller that the issue of such precepts was unnecessary. (8) Transportation of officer and prisoner, $31.30. Of this amount $31.10 was for the transportation of several prisoners, at ten cents a mile for each. The remaining sum of twenty cents was for transportation of the officer in charge of a prisoner, ten cents a mile on two different days. (9) Transporting prisoners to and from court, $78. This amount was actually paid for hack hire in accordance with the usual practice, and the charge had always before been allowed. The comptroller claims that the amount was excessive and the use of hacks unnecessary. (10) Attendance before commissioner, $144. Two, and sometimes three, officers attended in some cases before a commission upon the examination of a person charged with crime or a poor convict. The comptroller claims that the attendance of more than one officer was unnecessary; and that in the case of poor convict hearings under Rev. St. Sec. 1042, no attendance is to be allowed, as they are not persons charged with crime. (11) Witness fees paid, $836.10. This point is covered by the admission previously filed in this case.

'Fourth. As to allegations in the petition: The marshal duly rendered his accounts as stated, and the same were duly presented to the court and approved, and forwarded to the accounting officers of the treasury, as alleged.'

This court, pursuant to section 7 of the act of March 3, 1887, c. 359, under which this petition is filed, (24 St. 506,) specifically finds the facts of the case to be as above admitted and agreed, and states, as a conclusion of law, that the whole of the petitioner's claim, excepting the sum of $6.48, part of item 6, must be allowed, for the following reasons: The most interesting question in the case is whether this court has jurisdiction to pass upon those items of the claim, amounting to $140.32, which were disallowed by the comptroller before March 3, 1887. By section 2 of that act, the circuit and district courts of the United States are vested with concurrent jurisdiction within certain limits as to amount, of all matters which by section 1 'the court of claims shall have jurisdiction to hear and determine,' including--

'All claims founded upon the constitution of the United States or any law of congress, except for pensions, or upon any regulation of an executive department, or upon any contract, expressed or implied, with the government of the United States, or for damages, liquidated or unliquidated, in cases not sounding in tort, in respect of which claims the party would be entitled to redress against the United States either in a court of law, equity, or admiralty, if the United States were suable: provided, however, that nothing in this section shall be construed as giving to either of the courts herein mentioned jurisdiction to hear and determine claims growing out of the late civil war, and commonly known as 'war claims,' or to hear and determine other claims which have heretofore been rejected, or reported on adversely, by any court, department or commission authorized to hear and determine the same.'

Upon the question whether a disallowance of an account by the first comptroller of the treasury is within the latter part of this proviso, there has been a diversity of judicial opinion. The circuit court for the eastern district of Missouri held that it was, and its decision was followed by the district court in this district, as well as in the eastern district of Missouri. Bliss v. U.S., 34 F. 781; Rand v. U.S., 36 F. 671; Preston v. U.S., 37 F. 417. But the opposite view has since been maintained, on fuller consideration, by the district court in Connecticut, in Georgia, and in Illinois. Stanton v. U.S., Id. 252; Erwin v. U.S., Id. 470; Hoyne v. U.S., 38 F. 542. The earlier decisions are based upon section 269 of the Revised Statutes, by which it is made the duty of the first comptroller 'to superintend the adjustment and preservation of the public accounts, subject to his revision;' and upon section 191, which is as follows:

'The balances which may from time to time be stated by the auditor and certified to the heads of departments by the commissioner of customs, or the comptrollers of the treasury, upon the settlement of public accounts, shall not be subject to be changed or modified by the heads of departments, but shall be conclusive upon the executive branch of the government, and be subject to revision only by congress or the proper courts. The head of the proper department, before signing a warrant for any balance certified to him by a comptroller, may, however, submit to such comptroller any facts in his judgment affecting the correctness of such balance; but the decision of the comptroller thereon shall be final and conclusive, as hereinbefore provided.'

The clause of section 269, as to the general duty of the comptroller to superintend the adjustment and preservation of public accounts subject to his revision, is a re-enactment of a provision of earlier acts, reaching back to the foundation of the government. Acts Sept. 2, 1789, c. 12, Sec. 3, (1 St 66;) March 3, 1817, c. 45, Sec. 8, (3 St....