Kinney v. United States

• Decision Date: 04 April 1894
• Citation: 60 F. 883
• Court: U.S. District Court — District of Connecticut
• Parties: KINNEY v. UNITED STATES.

60 F. 883

KINNEY v. UNITED STATES.

United States Circuit Court, D. Connecticut.

April 4, 1894

Lewis E. Stanton, for plaintiff.

Geo. P McLean, U.S. Atty.

TOWNSEND District Judge.

This case has already been heard, and a judgment rendered in favor of the plaintiff. 54 F. 313. Upon motion of the United States district attorney, the judgment was opened to permit the introduction of additional testimony as to certain items of the account.

It now appears that items amounting to $108.17, allowed in that judgment, had been already credited to the plaintiff's decedent on other accounts, and that, therefore, said amount should be deducted from the amount of the previous judgment.

The court, following the rulings in similar cases in other circuits, disallowed an item of $20, charged for per diems in court on the former hearing, because it did not appear that business was actually transacted in court on the days for which said charges were made; but since that decision it has been held in U.S. v. Pitman, 147 U.S. 669, 13 S.Ct 425, that marshals are entitled to such per diems when the court is actually in session, and that it is so in session when, in obedience to an order of the court directing its adjournment to a certain day, the officers are present upon that day, the journal is opened by the clerk, and the court is adjourned to another day by further direction of the judge. This case seems to be controlling upon the facts in regard to this item, and it is therefore allowed.

Another item of $21.40 in the above account was for blanks furnished by the marshal for the use of the United States district attorney. Upon the former hearing it appeared that said charge had been disallowed by the United States, and that the plaintiff's intestate had acquiesced in such disallowance; but, inasmuch as by the decision in U.S. v Harmon, 147 U.S. 268, 13 S.Ct. 327 (rendered since the former hearing), such charges are distinctly allowable, they should be allowed in this case.

Plaintiff further claims the sum of $405 for services rendered by decedent as jury commissioner during nine periods of six months each from his appointment, August 4, 1882, until July 1, 1887; being nine days for each six months, or three days for each term of court. The government denies liability for the years 1882, 1883, and 1884, and also pleads the statute of limitations as to said years. The appointment of jury commissioners was authorized by section 2, Act June 30, 1879 (21 Stat. 43), but no provision was made for compensation until the act of July 7, 1884 (23 Stat. 194, 224). By this act five dollars per day was allowed for each day of actual and necessary employment, not exceeding three days for each term of court. Similar appropriations have been annually made since that date.

Plaintiff claims that the deficiency bills of March 30, and of October 19, 1888 (25 Stat. 47, 57, 565, 582), cover the years 1882, 1883, and 1884. These bills provide for 'appropriations to supply deficiencies in the appropriations for the fiscal year ending June 13, 1888, and for prior years, and for other purposes.' The items appropriated in these bills for compensation of jury commissioners do not state that they are to apply to any particular year. The plaintiff claims that there is therefore no limitation upon their application to any year in which a deficiency may be found to exist. But the government claims that a construction has always been placed upon these deficiency bills, to the effect that, where no year is appended to an appropriation, it applies only to the current year. An examination of said bills indicates that this was the construction intended by congress. In cases where an appropriation is made in said bills for a specific year, such year is prior to the fiscal year ending June 30, 1888. The general character of the appropriations where no specific year is named indicates that they are for the fiscal year ending June 30, 1888. In several cases several appropriations for the same object are provided for in separate sections, the first not naming any specific year, while each of the following ones is confined to a prior year, specifically named. Furthermore, as no compensation was fixed when the office was created, and no per diem is suggested or stated in the deficiency bills, it would seem that, at most, it could only be intended to apply to such prior years as to which a rate of compensation had been fixed.

Plaintiff claims, irrespective of said deficiency acts, that she is entitled to payment for said services as part of the miscellaneous expenses of courts. I think that such was not the intention of congress, as evidenced by subsequent deficiency acts,...