Kinney v. United States

• Decision Date: 06 February 1893
• Docket Number: 385.
• Court: U.S. District Court — District of Connecticut
• Parties: KINNEY v. UNITED STATES.

54 F. 313

KINNEY v. UNITED STATES.

No. 385.

United States Circuit Court, D. Connecticut.

February 6, 1893

L. E Stanton, for plaintiff.

George G. McLean, U.S. Atty.

TOWNSEND District Judge.

This is an action brought under the provisions of the act of March 3 1887, (24 St.U.S.p. 505,) wherein the plaintiff, as administratrix of the late John C. Kinney, seeks to recover certain sums for services and disbursements of said John C Kinney as United States marshal, in those of his accounts settled after June 15, 1885, and including matters which accrued up to August 4, 1886, when he retired from office. The items of said accounts have all been presented to the United States. Some have been suspended, some have been allowed in whole or in part after having been disallowed, others have been disallowed altogether. The United States, through its district attorney, denied the plaintiff's right of recovery. A transcript from the books and records of the treasury department was furnished by the United States under order of court. The defenses of the plaintiff's claim appear in the 'statements of differences' stated by the auditor, and these are repeated in the bill of particulars. Most of the objections to the account raise questions of law which will be separately considered. The questions of fact seem to me to be generally established in favor of the plaintiff, for the following reasons: First. The plaintiff being dead, and this being a suit by his administratrix, the entries and memoranda of the deceased relevant to the issue are admissible in his favor. Gen. St. Conn. 188, Sec. 1094. These entries, consisting of entries of the warrants against and accounts in favor of the plaintiff's decedent, were introduced and identified by the plaintiff, and show a balance, as claimed by her, in favor of the late marshal. Second. The settlement by decedent of his accounts with the United States was made in accordance with the provisions of the act of February 22, 1875, 18 St. at Large, p. 333. Under this law the marshal, as appears by the certificate of this court, 'rendered to this court on account of his fees and expenses from the 1st day of January, 1885, to the 30th day of June, 1885, with the vouchers and items thereof, and, in the presence of Lewis E. Stanton, United States attorney, has provided on oath to the satisfaction of the court that his services and travel charged therein were actually and necessarily performed, and that the expenses were necessarily incurred;' and said account was duly proved. Further accounts for each subsequent six months, and covering the entire matter in this suit, were rendered and proved in the same manner. If any objection is made to such an account, the burden is on the United States of establishing the validity of the objection. 'A sufficient answer to this objection is furnished in the findings of the court below that the account of the commissioner for the fees charged for the services in question was verified by oath and presented to the United States court, of which he was a commissioner, in open court, in the presence of the district attorney, approved by the court, and an order approving the same as being in accordance with law, and just, was entered upon the record of the court. The approval of a commissioner's account by a circuit court of the United States, under the act of February 22, 1875, (18 St.p. 333,) is prima facie evidence of the correctness of the items of that account; and, in the absence of clear and unequivocal proof of mistake on the part of the court, it should be conclusive. ' U.S. v. Jones, 134 U.S. 488, 10 S.Ct. 615; Harmon v. U.S., 43 F. 560.

The plaintiff introduced, by way of further proof, a number of witnesses, who were deputies under said Kinney during his term as marshal, and who testified as to the services rendered and moneys disbursed by them under the orders of said marshal, or of the court, or of the district attorney. I therefore find (with certain exceptions, to be hereafter noticed) that the services were rendered and moneys disbursed as stated in the accounts of said Kinney with the United States. As these items are scattered through the various divisions of the summary of a part of the bill of particulars on which my opinion is based, I shall, in passing upon them, merely state that they are allowed. The reasons for such allowance are expressed in the above general statement. The total amount of the bill of particulars is $2,087.69, but the real demand is only $1,134.53. This latter sum is the excess of the charges made by the marshal against the government for the period above named over the amount of warrants chargeable against him for the same period. It relates to two accounts,-- one the account for marshal's fees and expenses, and the other the account for miscellaneous expenses of courts,-- and a small item, undisputed, for support of prisoners for year 1886. Of this latter sum $887.69 has been disallowed or suspended, and it is this amount which is embraced in a summary of a part of the bill of particulars. This summary is filed in the cause as an amendment of said bill of particulars. The difference between the amount thus suspended or disallowed and the whole sum demanded by the plaintiff is simply an amount allowed by the auditor, but not paid. It is not paid, because in June, 1889, the late marshal handed back to the United States substantially all the funds in his hands, and had nothing left with which to pay any balance which may be found due to his estate.

The items suspended and disallowed appearing in this long bill of particulars, are summarized under 15 heads as follows:

Item 1. Per Diems before Commissioners and Courts, $198. Of this amount $98 relates to per diems before commissioners. The auditor claims that no hearing on the question of admission to bail, or on motion to adjourn, or on arraignment or commitment constitutes a 'hearing and deciding' within the law; in other words, he says that per diems can only be charged for a day on which a trial of the accused is had. I do not so understand the law. In U.S. v. Jones, supra, Mr. Justice Lamar says, (page 487, 134 U.S., and page 616, 10 Sup.Ct.Rep.:)

'The decision upon a motion for bail and the sufficiency thereof is a judicial determination of the very matter which the statutes authorize and require him to hear and decide, to wit, whether a party arrested for a crime against the United States, when brought before him for examination, shall be discharged or committed on bail for trial, and, in default thereof, imprisoned. With respect to motions for continuance, the granting or refusing of them is unquestionably a necessary incident and a part of the hearing and determination of criminal charges.'

The charge of $98 for per diems before commissioners is allowed.

The balance of the item, being $100, is for per diems before the court, disallowed by the auditor because no certificates were filed by the marshal to show that courts were open and business was transacted. Of said amount $80 have since been allowed upon explanation. As to the rest, counsel for plaintiff claims that, as the services herein referred to were rendered prior to the passage of the appropriation bill of August 4, 1886, whereby officers were obliged to show the transaction of business in order to recover, these charges should be allowed. He contends that by the rendition of the service the fee is earned, and that thereby a contract arises to pay said fee. I feel obliged on this point to follow the decision in Marvin v. U.S., 44 F. 405, in which Judge Shipman, disallowing a similar item, says, (page 408:)

'The appropriation bill of August 4, 1886, (24 St.p. 253,) provided that no part of the money appropriated by the act should be used in the payment of per diem compensation to a clerk or marshal for attendance in court except for days when business was actually transacted in court. This means business which belongs to the court, and is transacted by the judge; and places upon the clerk the burden of showing that business of the court was actually transacted on those days. The minutes simply show that the court was opened and adjourned, and, although the petitioner says that doubtless business of the court was transacted, he does not show what it was, within the proper meaning of that language, and I am therefore compelled to disallow the item.'

This disallowance only affects the $20, the balance having already been admitted by the United States. Upon item 1 the amount allowed is $178.

Item 2. Expenses of Arrest. The two items of $1.30 each for expenses in endeavoring to make arrest are disallowed. I do not find any authority for such expense, within the district, where as in this case, the officer had no warrant, and therefore could not have made the arrest even if he had found the accused. The item of $8.76, expenses of arrest, was disallowed on the ground that the statutory charge of $2 per day included all such expenses. It appeared from the testimony of the deputy marshal that these expenses were incurred under the direction of the United States district attorney. The accused was not found at the place where the deputy marshal first went, but, by traveling about in New York and Massachusetts under the direction of the district attorney, he finally secured...