United States v. Bashaw, 25.
| Decision Date | 23 May 1892 |
| Docket Number | 25. |
| Parties | UNITED STATES v. BASHAW. |
| Court | U.S. Court of Appeals — Eighth Circuit |
George D. Reynolds, for the United States.
Thomas M. Knapp and Thomas R. Harris, for appellee
Before CALDWELL and SANBORN, Circuit Judges, and SHIRAS, District judge.
At the September term, 1890, of the circuit court for the eastern district of Missouri, the appellee brought an action against the United States to recover compensation for certain services rendered by him during the years 1887 and 1888 in the capacity of district attorney for the United States in said eastern district of Missouri. The petition contained five counts, the second and third being based upon services rendered by the district attorney in examining into a number of alleged violations of the internal revenue laws of the United States, and which had been referred to him for examination by the collector of the district, under the provisions of section 838, Rev. St. The trial court found in favor of the plaintiff on these counts, and from this ruling and the judgment based thereon the United States has appealed to this court.
The question at issue, as stated in the first, second, and fourth assignments of error, is that the court below erred in receiving any testimony in support of the causes of action set forth in the second and third counts of the petition, for the reason that the facts therein stated did not show any cause of action against the United States. These facts, briefly stated, are that the collector of internal revenue for the first collection district of Missouri, during the years 1887 and 1888 reported to the plaintiff, as district attorney, the violations of the internal revenue laws had been committed in a number of cases; that the plaintiff, as required by law examined into these cases and the facts thereof, and after such inquiry and examination he reported that proceedings therein could not probably be sustained, and that the ends of justice did not require prosecutions therein; that the services thus rendered were reasonably worth the sum of five dollars in each case; that plaintiff duly made out his claim for expenses and services incurred and rendered in these cases, and submitted the same to the district judge for the eastern district of Missouri, who duly allowed and certified the same; that said claim, so certified, was presented to the treasury department of the United States, and that the defendant wrongfully neglects and refuses to pay the same.
The question for determination is thus narrowed down to the single proposition whether, under the provisions of section 838 of the Revised Statutes, the district attorney is entitled to compensation for services rendered in cases in which no prosecution is instituted; the theory of the government being that to entitle the district attorney to recompense for services of this nature suit must be brought. Section 838, Rev. St. reads as follows:
The section in express terms makes it the duty of the district attorney to examine into every case of supposed violation of the internal revenue laws referred to him by the collector, for the purpose of determining whether proceedings for fines and penalties can be sustained, and whether public justice requires the institution of proceedings; and in the cases wherein the conclusion is in the affirmative, to institute the proper proceedings, and in the cases wherein the conclusion is against the propriety of proceeding therein, then the district attorney must report the facts to the commissioner of internal revenue. Thus it is made the duty of the district attorney to examine into and take action, either by institution of proceedings or by report adverse thereto to the commissioner, in every case of alleged violation of the revenue laws referred to him by the collector, and then the section declares that 'for the expenses incurred and services rendered in all such cases the district attorney shall receive and be paid from the treasury,' etc. What cases are included within the words 'in all such cases?' Do not these words clearly refer to the cases previously mentioned in the section, to wit, the cases reported by the collector to the district attorney for examination? If the reference is to the cases reported by the collector for examination, and in our judgment no other construction is admissible, then the section clearly enacts that the district attorney is entitled to be paid for expenses incurred and services rendered in all cases reported to him for examination by the collector, regardless of the results of such examination. Unless compelled to do so by clear and unambiguous language, we ought not to hold that the congress of the United States, against the institution of proceedings not called for in the furtherance of justice, warned the district attorneys of the United States that they could not expect compensation for the expenses incurred and the services rendered by them in making the examinations provided for in the statute, unless they should find cause for the institution of proceedings. Such a construction would not only tend to defeat the very purpose of the enactment, but it would, in effect, place the government in the attitude of making the question of compensation for the services rendered depend, not upon the fact of the rendition of the services, but upon the fact that the conclusion reached was in favor of the claim asserted by the government. That which is demanded of the district attorney by the section in question is examination into facts and a determination of what public justice requires, which services are certainly judicial or quasi judicial in their nature, and it is repugnant to all just principles that compensation for judicial services should ever be made dependent upon the results of the decision rendered.
The position taken on behalf of the United States is clearly and briefly stated in a ruling made by Secretary Folger in 1884, and cited in the brief of counsel, in which he states:
...
To continue reading
Request your trial
-
Helvering v. Safe Deposit & Trust Co.
...See Matter of Miller, 110 N.Y. 216, 222, 18 N.E. 139; Matter of Harbeck, 161 N.Y. 211, 217, 218, 55 N.E. 850; United States v. Bashaw 8 Cir., 50 F. 749, 754, 1 C.C.A. 653. The government contends that the amendment was made for the purpose of clarifying rather than extending the law as it s......
-
State ex rel. Parsons v. Bunting Tractor Company
... ... E. MCKELVEY, J. H. STEMMER, AETNA CASUALTY AND SURETY COMPANY, a Corporation, UNITED PACIFIC CASUALTY INSURANCE COMPANY, a Corporation, CONTINENTAL CASUALTY COMPANY, a Corporation, and ... (3) If ... sec. 65-1507, I. C. A., is permissive, and the complaint ... states a cause of action, does the answer state facts ... sufficient to constitute a defense? ... J. 1097, note, 35; 25 R. C. L. 1051, ... sec. 276, n. 4, n. 5; United States v. Bashaw, 50 F ... 749, 754; People v. Weitzel, 201 Cal. 116, 255 P ... 792, 52 A. L. R. 811; United ... ...
-
State v. Emory, 6195
... ... Sage a bribe, to-wit: $ 15.00 lawful money of the United ... States on or about September 1, 1932, upon agreement and ... understanding that the said Ira ... an intention to change the pre-existing law. In United ... States v. Bashaw, (C. C. A.) 50 F. 749, it was said: ... "'The ... very fact that the prior act is ... ...
-
Lindley v. Murphy
...of the law already in existence. The presumption is, however, that the amendment was intended to change the law. United States v. Bashaw, 8 Cir., 50 F. 749. As pertinently observed in Lawrence v. People ex rel. Foote, 188 Ill. 407, 58 N.E. 991, 993, ‘The interpretation of a prior act, or th......