Van Buren v. United States
| Decision Date | 15 August 1888 |
| Parties | VAN BUREN v. UNITED STATES. |
| Court | U.S. District Court — District of Indiana |
Kealing & Hugg, for plaintiff.
Emory B. Sellers, Dist. Atty., for the United States.
No formal or technical objections have been made either to the complaint or to the answers, and the questions to be decided may be disposed of without a presentation of the pleadings. The action is brought under the act of congress of March 3 1887, (chapter 359,) to recover compensation for services claimed to have been rendered by the plaintiff as a commissioner of the circuit court for this district. The services were rendered in the case of the United States v William F. A. Bernhamer and others, brought before the commissioner upon an affidavit, a copy of which is set out in the report of the case, Ex parte Perkins, 29 F. 900; and upon the authority of that case it is insisted that the commissioner acted in the matter without jurisdiction, and therefore is entitled to no compensation. The claim was presented for allowance, and was rejected by the comptroller of the treasury department in May, 1887, after the passage of the act of congress; and consequently the case is not within the interpretation placed on the proviso of that act in Bliss v. U.S. 34 F. 781. It is shown that the plaintiff was engaged in the hearing in question for 12 days and, as it does not appear when the question of jurisdiction was mooted, it may be presumed that it was not raised before the last day, or, if raised sooner, that it was held under advisement until that time; so that, broadly stated, the proposition of the government is that its commissioners, at their peril in every instance, whether moved thereto by either party or not, must decide upon the sufficiency of the affidavit presented to confer jurisdiction, and, if a hearing be proceeded in without jurisdiction it shall be without right to compensation, even for the time given to the consideration and decision of that question. To so establish the law would, as it seems to me, impair the public service in this important branch; or if, in many instances, the public interest should not suffer, it would be, as this case strongly illustrates, at the expense of private right. I think the safe and proper rule on this subject must be that if the affidavit is such in form and substance as fairly to call for the deliberate judgment of the commissioner, whether or not a criminal violation of some federal enactment is charged, and the commissioner, in good faith, holding the presentment sufficient, proceeds with the examination, he will be entitled to the fees allowed by law, though it should turn out that his decision was erroneous. However, as was pointed out in U.S. v. Coy, 32 F. 543, it was not held in Ex parte Perkins that the affidavit in the case was absolutely and in itself insufficient under the law to give jurisdiction. The decision on that point was based largely upon an agreement or concession of counsel that 'the specific facts stated in the affidavit' were 'all the facts in the case,' and on that admission it was held that the commissioner was without power to proceed further. But, besides the specific facts stated, there is in the affidavit a charge in general words, quite material to the question of jurisdiction, namely: 'And otherwise to change, alter, and forge said tally-sheets and said returns thereon at said election. ' Moreover, the Indiana Statutes (section 1639, Rev.St. 1881) in respect to preliminary examinations before justices of the peace provide (and the same rule applies to federal circuit court commissioners conducting examinations in this state) that if 'it appears to such justice that a mistake has been made in charging the proper offense, or that he is guilty of an offense not charged, the justice shall not discharge the defendant, if there appears to him to be good cause to detain him in custody; but he must cause an affidavit charging the proper offense to be made against the defendant, and recognize him to answer the same, and, if necessary, also recognize the witnesses to appear and testify. ' If, therefore, it be conceded, as declared in Ex parte Perkins, that under the laws of Indiana 'a tally-paper contains a separate statement of the votes cast for each candidate for every office, and, although it is one in form, it is several in its essence and character,' and that, therefore, an alteration or forgery of such papers in respect to state or local officers alone could not be deemed to affect the election of a congressmen, it is still true that the general terms of this affidavit were broad enough to embrace the election in respect to the congressmen, and to establish the jurisdiction of the commissioner; it being in his power to require the general averments to be made more specific, or even a new affidavit specifying a different offense, according to the proofs adduced. It was doubtless competent and proper enough for counsel, in order to obtain the opinion of the court upon the specific facts stated in the affidavit, to make such an agreement as was made in Ex part Perkins, but the decision so made and limited can have, and, it is to be presumed, was designed to have, no conclusive effect upon the commissioner's right to compensation for his services in the matter, or upon the question of jurisdiction considered from a broad stand-point. Upon the facts stated in this affidavit, and other facts proved at the examination had under it before this agreement of counsel was made, the grand jury of this court, acting upon a somewhat different phase of the law, reported indictments which have been upheld both in the circuit court and in the supreme court, (see In re Coy, 31 F. 794, and Ex parte Coy, 127 U.S. 731, 8 S.Ct. 1263;) and consequently, as can now hardly be disputed, it was competent for the commissioner to have held the accused under recognizance, if not to answer the charge as brought, certainly an amended one, formulated according to the proofs adduced; and, this being so, he is entitled to compensation, unless there be other good reason to the contrary.
Speaking to the proposition that the certificate made by the board of election 'is to be deemed a separate document in respect to each candidate voted for,' Justice HARLAN says:
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