United States v. Swift

• Decision Date: 15 June 1905
• Docket Number: 570.
• Citation: 139 F. 225
• Parties: UNITED STATES v. SWIFT.
• Court: U.S. Court of Appeals — First Circuit

139 F. 225

UNITED STATES v. SWIFT.

No. 570.

United States Court of Appeals, First Circuit.

June 15, 1905

Melvin O. Adams, U.S. Atty., and William H. Garland, Asst. U.S Atty.

William F. Wharton, for appellee.

Before PUTNAM and LOWELL, Circuit Judges, and ALDRICH, District Judge.

PUTNAM Circuit Judge.

This case was brought in the Circuit Court of the United States under what is known as the 'Tucker Act,' approved on March 3, 1887, chapter 359, 24 Stat. 505, as amended by the act approved on June 27, 1898, chapter 503, 30 Stat. 494 (U.S. Comp. St. 1901, p. 752).

The seventh section of the act of 1887 provides that it shall be the duty of the court to cause a written opinion to be filed setting forth its specific findings of facts and its conclusions of law. It provides, however, that, if the suit be in equity or admiralty, 'the court shall proceed with the same according to the rules of such courts. ' In the case at bar there is an agreed statement of facts, which is in truth a statement of ultimate facts, so far as it goes; and there is also a careful opinion of the learned judge who presided in the Circuit Court, somewhat elaborating and adding to the agreed statement. Under the statute, that opinion is not to be regarded as the usual opinion of the trial judge, but it must be accepted as a part of the record; and, although the statute makes no specific provision for an agreed statement we may assume, though we do not decide, that, by analogy to other statutes directing findings of facts by the trial court, this agreed statement must also be regarded as a part of the record. We are justified in these propositions because the case has been submitted to us by both parties, on the strength of both the statement of facts and the opinion, without any question.

This proceeding comes before us on appeal; but, so far as the Circuit Courts and District Courts are concerned, the section of the Tucker act to which we have referred, and also section 9, carefully distinguished equity and admiralty, and this case, which relates to common-law rights, should more properly have been brought before us on a writ of error. Both this and the form of making up the record were considered and explained in Chase v. United States, 155 U.S. 489, 500, 15 Sup.Ct. 174, 39 L.Ed. 284, and in United States v. Ady, 76 F. 359, 22 C.C.A. 223. However, as no question is made by the parties on this account, and as, apparently, there seems to be some question whether the aggrieved party may not proceed in a case of this character by either writ of error or appeal, as he may elect, and as the period for suing out a writ of error in this case has expired, the practical result would be the same whether we dismiss or affirm on the merits, one of which we must do. Therefore we pass by all these questions of formalities.

The United States object to the jurisdiction of the Circuit Court on two grounds: First, because the second section of the Tucker act does not give the Circuit Courts jurisdiction where the amount of the claim is less than $1,000; and, second, because the second section of the amendatory act of 1898, already referred to, reads as follows:

'The jurisdiction hereby conferred upon the said Circuit and District Courts shall not extend to cases brought to recover fees, salary, or compensation for official services of officers of the United States, or brought for such purposes by persons claiming as such officers or as assignees or legal representatives thereof.'

As to the first branch of this jurisdictional objection, the United States seem to rest on the fact that, while the demands covered in the original petition amounted to $1,225.59, the sum awarded by the Circuit Court was only $377.59; but, according to the settled construction of other statutes which have fixed the jurisdiction of federal courts in accordance with specific amounts in suit, it is the amount in good faith claimed which establishes the jurisdiction, and not the amount actually recovered. Schunk v. Moline Company, 147 U.S. 500, 505, 13 Sup.Ct. 416, 37 L.Ed. 255. There are exceptional cases of a very peculiar character, where, on the very face of the record, it is evident that there is no claim which can be substantiated equaling the jurisdictional amount, which can hardly apply at bar. Here the demand was reduced below the jurisdictional amount of $1,000 by the disallowance of one item of $848, as to which it is evident from the opinion of the Circuit Court there was a clearly bona fide claim, and which was rejected only after a somewhat protracted examination of facts and law.

As to the second branch of the jurisdictional question, it must be said it relates more to the merits than to the jurisdiction as such. However that may be, the second section of the act of 1898, relied on by the United States and already quoted, is clearly not applicable to this case. It is maintained by the petitioner that his proceeding is not to recover fees qua fees, but amounts paid by the marshal to other persons who demanded that he should make such payments. It is not, however, necessary that we should consider whether the statute of 1898 would bar this indirect method of giving the Circuit Courts and District Courts jurisdiction for the recovery of fees, because the second section of the act of 1898 refers only to the emolument of 'officers of the United States,' or persons claiming to be such officers. All the so-called fees in question here were paid to so-called bailiffs of the Circuit Courts and the District Courts. Bailiffs are never sworn in accordance with the statute, and are not 'officers of the United States.' Section 715 of the Revised Statutes (U.S. Comp. St. 1901, p. 579), authorizing their appointment, describes them as 'persons.' The ordinary use of the expression 'officers of the court' covers them. This was fully explained by us in United States v. McCabe, 129 F. 708, 64 C.C.A. 236. The disbursements were ordinary payments to persons employed, and not in any sense official fees.

In United States v. Aldrich, decided by us on September 29, 1893, 58 F. 688, 7 C.C.A. 431, we referred to the fact that it did not always follow that, because a certain appropriation act provided that moneys thereby appropriated should not be applied in certain payments, the persons claiming payments were not entitled to recover where the right to them is supported by general legislation. It is true, cases may arise where, notwithstanding the general legal right, there may be no appropriation, so that a disbursing officer who had made disbursements might be liable on his official bond or otherwise. This question, however, did not arise in United States v. Aldrich. Also, in the present case, no issue can arise based upon the proposition that the petitioner had disbursed money contrary to the provisions of the statutes of appropriations, because he paid the money in dispute into the treasury, and now proceeds only to recover back what is due him as a matter of legal right. Of course, that judgment when recovered will be subject to the constitutional provision that it cannot be paid unless an appropriation therefor has already been made or hereafter may be made. Therefore we proceed to determine only the absolute rights of the parties.

On the merits, we agree entirely with the conclusions of the learned judge of the Circuit Court. The demands in dispute relate to payment of three bailiffs for each court-- that is, the Circuit Court and the District Court-- when each court is said to have been held at the same place, at the same time, by the same judge; to payment of an additional guard, called in the account a bailiff, for two Sundays, in connection with the care and oversight of a jury impaneled in a capital case then on trial; and the cost of meals furnished officers in charge of witnesses who were in custody in the same capital case, having failed to give the recognizances required by law, and who were therefore fed at the cost of the United States without dispute as to the propriety of that expense, and over whom it was necessary that a guard should be constantly kept.

The statute authorizing the employment of sundry persons who are elsewhere called bailiffs is section 715 of the Revised Statutes, as follows:

'Sec. 715. The Circuit and District Courts may appoint criers for their courts, to be allowed the sum of two dollars per day; and the marshals may appoint such a number of persons, not exceeding five, as the judges of their respective courts may determine, to attend upon the grand and other juries, and for other necessary purposes, who shall be allowed for their services the sum of two dollars

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