United States v. Marks

• Decision Date: 16 April 1898
• Docket Number: Civil 577
• Citation: 5 Ariz. 404,52 P. 773
• Parties: UNITED STATES OF AMERICA, Plaintiff and Appellant, v. SIMON MARKS et al., Defendants and Appellees
• Court: Arizona Supreme Court

52 P. 773

5 Ariz. 404

UNITED STATES OF AMERICA, Plaintiff and Appellant, v. SIMON MARKS et al., Defendants and Appellees

Civil No. 577

Supreme Court of Arizona

April 16, 1898

APPEAL from a judgment of the District Court of the First Judicial District. J. D. Bethune, Judge. Affirmed.

The facts are stated in the opinion.

E. E Ellinwood, United States District Attorney, for Appellant.

Barnes & Martin, for Appellees.

OPINION

DAVIS, J.

-- This was an action brought by the United States to recover from Simon Marks and the sureties on his official bond money alleged to have been illegally retained by him, while postmaster at Contention, Cochise County, Arizona. The defendants denied any indebtedness, -- and set up as a counterclaim an amount alleged to be due from the United States to the said Marks for his services as such postmaster in accordance with the quarterly accounts rendered by him to the plaintiff. It appears from the record that Simon Marks was postmaster at the place named from May, 1883, to December 31, 1885, at which time his postal accounts were audited by the department at Washington, showing a balance in his favor of $597.30; that at the appellant's request he executed and forwarded to the department a proper receipt for this amount, but that neither the said sum nor any part thereof has been paid to him. It further appears that a subsequent examination of said Marks's accounts by the post-office department resulted in a claim that he had made false returns of the business done at the Contention post-office, and that the following order was issued by the postmaster-general in relation thereto: "Order No. 454. Post-Office Department. Office of the Postmaster-General, Washington, D.C., October 27 1887. Being satisfied that S. Marks, late P.M., Contention Cochise Co., Ariz., has made false returns of business at the post-office at said place during the period from April 1, 1883, to December 31, 1885, thereby increasing his compensation beyond the amount he would justly have been entitled to have by law: Now, in the exercise of the discretion conferred by the act of Congress entitled 'An act making appropriations for the service of the post-office department for the fiscal year ended June 30, 1879, and for other purposes,' approved June 17, 1878, (section 1, c. 259, p. 358, 1 Supp. Rev. St.,) I hereby withhold commissions on the returns aforesaid, and allow as compensation (in place of such commissions and in addition to box rents), deemed by me, under the circumstances, to be reasonable during the period aforesaid, the rate of $40.00 per quarter, and the auditor is requested to adjust his accounts accordingly. [Signed] WM. F. VILAS, Postmaster-General." That the accounts of Marks were readjusted by the department on November 21, 1887, in accordance with said order, and he was charged with $935.24 as compensation illegally retained through false returns of business, by which a debit balance was created against him of $337.94. It was to recover this balance that the government brought its action. The case was heard before the lower court, sitting without a jury, and a judgment was rendered in favor of the defendant Marks for $597.30 and interest. From the judgment and the order of the court overruling a motion for a new trial the government has appealed. It is assigned for error (1) that the court below excluded from evidence, upon objection of the defendants (appellees), the duly verified order (No. 454) of the postmaster-general, and (2) that the court admitted in evidence, over the objection of the plaintiff (appellant), certified copies from the department files of the affidavits of Simon Marks and four other persons, relating to the business of the Contention post-office during the years 1883, 1884, and 1885. In neither instance does the face of the record bear out the appellant's claim as to the ruling of the lower court upon the admissibility of the evidence. It does appear that both said order and the affidavits were admitted in evidence, subject to objection (which was not ruled upon), and were all before the court. It does not appear what of said evidence was considered by the court, or what excluded, in reaching its decision. Under these conditions we have felt it our duty to look into the case for the purpose of determining whether the competent evidence sustains the judgment, for, if that be true, then we are justified in assuming that the lower court disregarded that which was incompetent. The evidence offered by the plaintiff was wholly...