Stanton v. United States

• Decision Date: 14 January 1889
• Citation: 37 F. 252
• Court: U.S. District Court — District of Connecticut
• Parties: STANTON v. UNITED STATES.

37 F. 252

STANTON v. UNITED STATES.

United States Circuit Court, D. Connecticut.

January 14, 1889

Lewis E. Stanton, in pro. per.

Geo. G Gill, U.S. Dist. Atty.

SHIPMAN J.

This is a petition of Lewis E. Stanton, Esq., late district attorney of the United States for this district, which was brought to this court by virtue of the provisions of the act of March 3 1887, entitled 'An act to provide for the bringing of suits against the government of the United States,' to recover those items in his accounts as district attorney which had been suspended or disallowed by the accounting officers, or which, although allowed, have not been paid. Said petition was duly served in accordance with the provisions of the sixth section of said act. The present district attorney of the United States for this district appeared, filed an answer, which denied an indebtedness by the United States to the petitioner, and upon the trial defended the interests of the government in said suit.

The first question in the cause is one of law, in regard to the jurisdiction of the court, and arises upon the language of the proviso in the first section of said act: 'Provided however, that nothing in this section shall be construed as giving to either of the courts herein mentioned jurisdiction * * * 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. ' The position of the United States is that some of the items contained in the plaintiff's bill of particulars were, prior to March 3, 1887, rejected by the department which had charge of the auditing of the accounts of district attorneys; and that, as to those items, no other court is empowered by the statute to adjudicate. The position is sustained by the opinion of Judge BREWER in Bliss v. U.S., 34 F. 781, which is hesitatingly followed by Judge WEBB in Rand v. U.S., 36 F. 671. Notwithstanding the authority in its favor, I am not satisfied that this statute was merely prospective in respect to disallowed claims, but, on the contrary, think that this part of the proviso intended only to exclude from either of the courts claims which had been adjudicated by a court, department, or commission authorized to determine between the parties. A large part of the jurisdiction of the court of claims, before the enactment of this statute, consisted in the consideration of the validity of claims which had been rejected by the accounting officers of the government; and, among others, the decisions of the comptroller of the treasury were the subjects of revision. Section 191, Rev. St. If the construction which is now contended for is correct, this important branch of the business and duty of the court of claims would be abridged. It was not the intention of congress to diminish, but, on the contrary, to enlarge, the jurisdiction of that court. By statute a department is sometimes authorized to hear and finally determine in regard to specified class of claims; as, for example, the department of the interior, and the commissioner of Indian affairs, are made final judges of certain claims; and it is an adjudication under this statutory authority by which complete power to pass upon the amount or validity of a claim had been given to a department or commissioner that reference is had in the proviso under consideration. The words 'hear and determine' are used three times in the first section. They are used twice to define the power of the courts of which new jurisdiction is given. Once they are used to express the power of the court, department, or commission which had previously passed upon the claim. The words are used each time in the same sense; that is, they refer to judicial determination after a hearing and weighing on both sides, and not to an ex parte accounting. I am well aware that the word 'heretofore' seems, under this construction, to be of little value, but I think that the proviso was inserted out of abundant caution, lest subjects which had theretofore been adjudicated by an authorized tribunal could be reconsidered under this statute. If reliance is to be placed upon the opinion of the conference committee, upon whose report this proviso was inserted, it referred to claims which were res adjudicata upon being heard and determined before any department, court, or commission, and not to claims which had theretofore been rejected in the ordinary process of presentation and audit.

A number of the items in the plaintiff's bill, which were presented prior to March 3, 1887, were not rejected; no definite action was taken; they were suspended for further inquiry or statement. Some of them were disallowed, which seems to be equivalent to rejected. The items which were disallowed or rejected by the department prior to March 3, 1887, and which I allow, amount to $125. The suspended items which I allow amount to $349.50; and the admitted, but unpaid, items amount to $15.40.

The facts which are found to exist in regard to the several items in the bill of particulars are as follows:

The plaintiff was district attorney for this district from January 2, 1885, to April 2, 1888.

No. 1. The items in the half-yearly account of June 30, 1885, which were disallowed, are:

"Attendance before Commissioner in U.S. Meech. on January 17 v. " " " " " Prescott. " " 19 " " " " " Meech, " Feb. 18 " " " " " Roath, " Jan. 29 " " " " " Prescott, " " 14 " " " " " Richmond, " March 30 " " " " " Mayer, " April 28 --each at $5.00, and judgement in U.S. v. Thompson, circuit court, April term, $10.00. Total $45.00."

The first Prescott claim is not pressed. The Meech and Roath items, amounting to $15, arise upon the following facts. Meech and Roath were defaulting cashiers in two Norwich banks, and the cases were important. The days that are charged for were days necessarily spent in Norwich, at the request of the parties in interest, in the actual examination and investigation of the cases, partly in the office of the commissioner, but before the arrest was made; and no sworn testimony of witnesses was taken before the commissioner on the days which were disallowed. The action of the accounting officer is based upon a construction of section 824, which refuses 'per diems' before commissioners, unless after arrest, and unless sworn testimony is actually taken before the commissioner. This construction of that portion of the section which relates to the subject of preliminary examination of criminal cases, is, in my opinion, incorrect. The language is: 'For examination by a district attorney, before a judge or commissioner, of persons charged with crime, five dollars a day for the time necessarily employed. ' It frequently happens, especially in important cases, that much time is necessarily and exclusively spent by the attorney in the investigation, preparation, and examination of the cases before the arrest is actually made, and before witnesses are sworn. The result of this investigation is submitted to the commissioner, before whom complaint is made, before arrest. The Roath and Meech items are of that class. This general question was considered by Attorney General Black in 9 Op.Atty.Gen. 170, who came to the conclusion that there was no distinction between an investigation or examination before the warrant is issued, and that which comes before the committal, and that examination of the person charged includes and investigation of the case. Confining myself to the facts in this case, I think that the district attorney is entitled to a fee of five dollars per day for the time necessarily employed in consultation or co-operation with the commissioner in the preliminary proceedings of a criminal prosecution before the actual arrest. The second Meech item was for a day necessarily spent in Norwich with the commissioner, upon the arrest of the accused upon a new information. These items are allowed. The item of five dollars for services in Prescott's case, on January 14th, is unobjectionable. The services were rendered and the day spent before the commissioner in New Haven, after arrest, when the accused was arraigned. The Richmond and Mayer items involve the question whether, for actual services before commissioners, and for actual services not provided for by docket fee, before the circuit or district court, on the same day, a double fee of five dollars can be allowed. I think that the intention of congress in section 824 was to give only five dollars for the work of one day, which may not be provided for by docket fees; and if the attorney performs two days' work in one he is entitled to five dollars only. The item of $10 for judgment fee v. C. B. Thompson rests upon the following facts: Thompson was arrested in Vermont and was bound over to the circuit court. In this district, all criminal cases over which the district court has jurisdiction are tried in that court. Upon motion, the case was remitted to the district court. Although the affirmative ruling upon the motion was a final disposition of the case, so far as the circuit court was concerned, I do not think it could be called a judgment in the sense in which the word is used in the fee-bill, and which is a sentence or order pronounced on hearing of the points in issue, and determining the rights of the parties. This motion was a part of the ordinary routine business, for the performance of which the 'per diem' of five dollars is given. Upon the items in No. 1, $20 are allowed.

No. 2. The claimed and unpaid items in the half-yearly account ending December 31, 1885, are as follows:

Travel and attendance before court, in case of Robert Jeffrey	$ 15 40
Attendance before Com'r, also charged before circuit court, .......	20 00

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