United States v. Aldrich, 49.

• Decision Date: 29 September 1893
• Docket Number: 49.
• Citation: 58 F. 688
• Parties: UNITED STATES v. ALDRICH et al.
• Court: U.S. Court of Appeals — First Circuit

58 F. 688

UNITED STATES v. ALDRICH et al.

No. 49.

United States Court of Appeals, First Circuit.

September 29, 1893

Charles E. Gorman, U.S. Dist. Atty. for R. I., (Frank D. Allen, U.S Dist. Atty. for Mass., on the brief,) for the United States.

Henry Marsh, Jr., and James M. Ripley, for defendants in error.

Before COLT and PUTNAM, Circuit Judges, and NELSON, District Judge.

PUTNAM Circuit Judge.

The United States waive all question except as to the items in paragraph 1, 2, 3, and 4 of the agreed statement. The item in paragraph 1 was disallowed by the circuit court, and, with the commissions on it, constitutes the amount of the judgment below for $15.20, and there is now no question touching it.

The items in paragraph 4, beginning August 6, 1886, and ending September 7, 1886, are claimed to be covered by the appropriation act of August 4, 1886, (24 Stat. 253,) which provided that no part of any money appropriated by that act should be used in payment of per diem compensation, except for days when business was actually transacted in court. This is not a prohibition of a per diem, but extends merely to that appropriation; so that the legal right to the per diem remained the same as though the act had not been passed, and the marshal stands, with reference to those days, precisely as he stands with reference to the others in items 2, 3, and 4. The appropriation act of March 3, 1887, (24 Stat. 541,) is of another character, and relates to all moneys thereafterwards appropriated. Therefore, this statute was held by the court of appeals for the eighth circuit, in U.S. v. Perry, 1 C. C. A. 648, 50 F. 743, to be a substantial amendment of the Revised Statutes touching the right to a per diem.

U S. v. Pitman, 147 U.S. 669, 13 S.Ct. 425, seems to meet all the objections of the United States to the effect that a court is not in session for the purposes of a per diem when no judge is present; also, to the effect that the act of March 3, 1887, already referred to, does not furnish a legislative construction of the words 'in session,' occurring in Rev. St. § 829. Indeed, U.S. v. Pitman fully settles that under this section an officer present to attend a court, when required to be present, is entitled to his per diem whether the court is opened by the judge or not, or whether the judge is present or not.

The above suggestions dispose of all items in paragraphs 3 and 4 although it is particularly claimed by the United States that the record does not indicate that the court was in session for the days...