Fitzsimmons v. United States

54 F. 812, 4 C.C.A. 589, 1893 U.S. App. LEXIS 1495

• Court: Court of Appeals for the Fifth Circuit
• Decided: February 27, 1893
• Docket: No. 68
• Status: Published

Opinion

PARDEE, Circuit Judge,

(after stating the facts.) The fourth, fifth, and sixth assignments of error relate to the opinions and rulings of the trial judge on the motion for a new trial, and are not subject to review. The first assignment of error, relating to a charge to the jury refused by the court; the second, relating to error in overruling an exception to the auditor’s report; and the third, assigning as error the action of the trial court in sustaining a demurrer to a plea, — all raise the same question, succinctly stated in the seventh assignment of error, as follows:

“The whole case was tried and determined on the assumption that the marshal was not entitled to any credit in his account on account of services rendered and fees earned by his said deputies, unless the marshal had paid the same to the deputies; the defendants contending that he was entitled to such credit, and the court holding and deciding that he was not thus entitled.”

The question presented seems to have arisen in this way; The auditor appointed by the court says in his report:

“In the examination of this case it became necessary to go into the accounts of the deputies against the United States, and to ascertain the amounts of their earnings, disallowances, reallowances, etc-., and thus to ascertain the balances due them; and while, in accordance with the view I have taken of tlie case, the statement of those balances is not necessary to a proper understanding of the issues involved, yet I have thought proper to append the table set forth in the Exhibit L, covering two pages, showing the balances due the deputies there named from the United States.”

The table appended purports to show as the balance due the deputies from the United States sums ranging from $5.16 to $2,784.13, aggregating $12,712.21, as due to some 24 persons named. TRe plaintiffs in error excepted to the auditor’s report, because the ex-marshal was not given credit for that amount in the statement of his account with the United States. .Failing on exception, they ñled a further plea, (their former pleas having been practically a -general denial,) pleading the amount of $11,988.17 in defense of plaintiffs claim, “and the residue as a set-off in favor of the defendant Fitzsimmons, for the use of his deputies, to whom the same is due and owing, and praying for judgment for the same.” A demurrer having been interposed and sustained to said plea, the contention was renewed by requesting a charge instructing the jury that the amount reported by the auditor as due to deputies from the United States “is not to be regarded as a debt due to the deputies, but to the marshal’s office, and must be so treated in their findings in the case.”

The question thus presented ⅛ whether O. P. Fitzsimmohs, late marshal of the United States, in á suit against him. and his sureties on Ms official bond to recover balance's due by him as an accounting’ and disbursing officer of the United Btates, is entitled to credit for disbursements that he has not made, or to credit for alleged services of Ms deputies which he does not pretend to have paid. So far as the suit is one against Fitzsimmons, late marshal, as a disbursing officer of the United Btates, it is plain that the credit claimed is wholly inadmissible. Bo far as the suit is against Fitzsimmons, late marshal, for a settlement and accounting as to the fees and emoluments of his office, more difficulty is presented. The following sections of the Revised Statutes of the United States bear directly upon the matter in hand:

“Sec. 880. There shall be paid to ilie marshal his fees for services rendered for the United States, for summoning jurors and witnesses in behalf of the United States, and in behalf of any prisoner to be tried for a capital offense; for the maintenance of prisoners ox the United States confined in jail for any criminal offense; also for his reasonable actual expense for the transportation of criminals, and of the marshal and guards, to prisons designated by the attorney general, and for hire and subsistence in that behalf, as hereinbefore provided; also his fees for the commitment or discharge of prisoners; Ms expenses necessarily Incurred for fuel, lights, and other contingencies that may accrue in holding the courts within his district, and providing the boohs necessary to record the proceedings thereof: provided, that he shall not incur or be allowed an expense of more than twenty dollars in any one year for furniture, or fifty dollars Cor rent of a building, and making improvements thereon, without first submitting a statement and estimates to the attorney general, and getting Ms ins ¡ructions in the premises.'"

“Sec. 838. Every district attorney, clerk of a district court, clerk of a circuit court, and marshal, shall, on the first days of January and July In each year, or within thirty days thereafter, make to the attorney general, in such form as he may prescribe, a written return for the half year ending on said days respectively, of all the fees and emoluments of his office, of every name and character, and of all the necessary expenses of his office, including necessary clerk hire, together with the vouchers for the payment of the same for such last half year. He shall state separately in such returns the fees and emoluments received or payable under the bankrupt act; and every marshal shall state separately therein the fees and emoluments received or payable for services rendered by himself personally, those received oi* payable for services rendered by each of his deputies, naming him, and the proportion of such fees and emoluments which, by the terms of his service, each deputy is to receive. Said returns shall be verified by the oath of the officer making them.”

“See. 841. No marshal shall be allowed by the attorney general, except as provided, in the next section, to retain of the fees and emoluments which he is required to include in his semiannual return, as aforesaid, for his personal compensation, over and above the necessary expenses of his office, including necessary clerk hire, to be audited and allowed by the proper accounting officers of the treasury department, and a proper allowance to his deputies, any sum exceeding six thousand dollars a year, or exceeding that rate for any time less than a year. The allowance to any deputy shall in no case exceed three fourths of the fees and emoluments received or payable for the services rendered by him, and may be reduced below that rate by the attorney general whenever the returns show such rates to be unreasonable.”

It is to be noticed that neither the report of the auditor, the exceptions to the auditor’s report, the overruled plea, nor the requested charge to the jury show in any manner whatsoever the alleged services of the deputies of the late marshal for which credit is asked, whether within or without said section 830; nor whether any return, duly verified, with details, as required by the said section 833, was ever made; nor that the same had even been submitted to the treasury department to be audited and allowed by the proper accounting officers thereof, in accordance with the provisions of said section 841. Section 951, Eev. St., expressly prohibits the allowance of credits on the trial of suits brought by the United States against individuals, except such as appear to have been presented to the accounting officers of the treasury for their examination, and to have been disallowed, in whole or in part, unless it is proved to the satisfaction of the court that the defendant is at the time of the trial in possession of vouchers not before in his power to procure, and that he was prevented from exhibiting a claim for such credit at the treasury by absence from the United States, or by some unavoidable accident. The provisions of this section seem to have been wholly ignored by the plaintiffs in error. The record shows no attempt whatever to comply with the statutes herein referred to, nor any reason why such attempt was not made. It seems to us that the regulations provided by law for the settlement of accounts between the United States and their officers control the courts as well as the accounting officers of the treasury. Stress, also, ought to be laid upon the fact that, so far as this record shows, the amounts claimed to be due deputies of the late marshal are asserted to be due by the United States, and not by Fitzsimmons; and, further, that whether the said amounts claimed to be due. said deputies are paid by the United States, or paid by the plaintiff in error and then refunded by the United States, the account between the United States and Fitzsim-mons, and the balance due the United States, involved in this suit, will remain the same. If we take the case as one where the statutes of the United States in relation to the settlement of accounts with officers have been complied with, and the amounts claimed to be due the deputies have been duly presented to the accounting officers of the treasury as a proper credit to the late marshal, and by such officers disallowed, because the same had not been paid by the late marshal, still we cannot see how the plaintiffs in error can get relief in this suit, unless the court, as a matter of law, is authorized to allow a credit for disbursements not made. As far as this record goes, it is the United States that owes the deputies, and, if so, will owe them until they are paid.. It may be that the fees earned by the deputies belong to the office of marshal, and that the amounts due them for services are due by the office, but the matter is complicated by the fact that when the marshal has collected his maximum compensation, as in this case, the United States are the beneficiaries of the office. It may be that by lapse of time and mistaken efforts and attempted remedies legislation is necessary to do full justice to all parties, but in this suit at law we do not think that the plaintiffs in error, on the showing made in this suit on the late marshal’s official bond, can be allowed credits for amounts alleged to be due by the United States to either the marshal’s office or to the deputies of the late marshal.

We are constrained to hold with the trial judge, and to rule that the record presents no reversible error. The case presented, however, while showing that the judgment of the court below is proper against the plaintiffs in error, yet suggests equities in favor of other parties, to whom tbe judgment of the court below, if left unqualified, may be construed injuriously; and therefore, while affirming the judgment, we deem it proper to modify the same so as to avoid the semblance of such prejudice.

It is therefore ordered and adjudged that the judgment of the circuit court in this case shall not be construed so as to prevent the plaintiff in error O. P. Fitzsimmons, late marshal of the United States for the northern district of Georgia, from claiming from the United States such sums as he may hereafter properly pay to his late deputies for services rendered to the United States within the purview of section 830, Eev. St. TJ. S., and which are not included in any of the claims allowed and audited in this suit; nor to prevent the late deputies of the said O. P. Fitzsimmons, late marshal of the northern district of Georgia, from applying to the United States, by suit or otherwise, for the direct payment to them for services rendered the United States during the term of office of O. P. Fitzsimmons, late marshal; and, as so modified and qualified, said judgment be, and the same is hereby, affirmed.