United States v. Kearney

116 F. 497, 1902 U.S. App. LEXIS 5010

• Court: U.S. Circuit Court for the District of Northern Iowa
• Decided: June 24, 1902
• Status: Published

Opinion

SHIRAS, District Judge

(after stating the facts). In the petition filed in this case, after reciting the appointment of the defendant Kearney as postmaster at Sheldon, Iowa, and the giving of his official bond, it is averred that the condition of the bond has been broken, in that said Kearney was allowed by the post-office department to expend for rent from October I, 1893, to May 31, 1897, the sum of $300 per annum, and from May 31, 1897, the sum of $120 per annum; that while he, the said defendant Robert E. Kearney, was such postmaster, beginning with October 1, 1893, and ending with October 9, 1897, at Sheldon, county of O’Brien, state and district as aforesaid, he rented premises in part of which the post office was located, during the whole period in which he was such postmaster, at the rate of $660 per annum, and that he sublet such parts of said premises so rented by him as were not occupied by said post office, and received rent from such sublettings; and that the amounts received from such sublettings, added to the amount he was allowed by the department for rental, was in excess of the amount paid by h*im for the rent of the premises during the time he was postmaster, such excess amounting to the sum of $610.85, and which sum he has not paid or accounted for, and judgment for this amount is prayed against Kearney and his bondsmen. The difficulty with the case of the government is that the evidence does not show that Kearney received for the use of the premises by him leased from W. H. Sleeper, including the rental allowance from the government, an amount in excess of the rent he was obliged to pay to his lessor. The utmost that can be claimed is that he should be held accountable for the sum of $300° per annum, in accordance with the statements made by him in his letter to the department in reply to letter of September 5, 1896, and, adding this amount to the allowances made by the government, it would show that up to May 31, 1897, Kearney received in all the sum of $600 per annum, and from that date to October 9, 1897, he received rental at the rate of $420 per annum, whereas the rental by him paid to his lessor, W> H. Sleeper, during the whole of this period was at the rate of $660 per annum. It is not charged in the petition that the allowances made by the government for rental were excessive, and that the allowance had been wrongfully obtained through any wrongdoing on part of the defendant Kearney, but the basis of the claim made is that the amount received by him from the sublettings, added to the allowances of $300 and $120 made by the department, exceed the rental paid by Kearney in the sum of $610.85, and this sum he has failed to account for. As already said, the evidence fails to show that the rental from the sublettings, added to the allowances from the government, ever equaled the amount of rental Kearney was obliged to pay, and therefore it is not proven that Kearney -has failed to account for any moneys by him received for the use or benefit of the United States.

If I correctly interpret the action taken by the department, as gathered from the letters put in evidence, after the receipt of the letter from Inspector Maher the allowance for rental was reduced to $120 per annum, as shown by the letter of June 7, 1897; but by such action the department did not attempt to change the allowance of $300 previously made, and the more that allowance is reduced the more clearly is it shown that Kearney has not received from the rentals and allowances any sum in excess of the rent by him paid under his lease with the owner of the building. It seems that after the expiration of Kearney’s term of office the department came to the conclusion that the allowance of $300 originally made to Kearney ought to be reduced to the sum of $120, and a restatement of his account was made, in which the difference between the $300 and $120 was charged against him, and in this way it was figured that he should account to the government for the sum of $610. No evidence whatever has been introduced tending to show that the allowance of $300 for the portion of the premises occupied by the post office was in any sense excessive, or that the, sum of $120 is fair compensation for the premises thus occupied. These allowances were made by the department, and after the close of the term of office of the postmaster his account was settled on the basis of these allowances, and the sum found due from Kearney was paid by him. It certainly cannot be expected that the court will enter judgment against Kearney and his bondsmen for the amount now claimed without some evidence showing that Kearney is in default or in the wrong; and none such has been offered. The action of the department seems to have been based upon the letter of Inspector Maher of February 8, 1897, but the statements in that letter cannot be accepted as evidence against Kearney and his bondsmen in an action of this character, and, even if it was admissible, it does not show that in fact Kearney received more than $300 as rental from the room rented by him in addition to the allowance from the government. True, it is stated therein that “the P. M. pays $55 and charges $45 per month for store space,” but, taking the letter as a whole, it leaves the matter in doubt as to the amount actually received as rental for the property. Based upon the statements of the person acting as postmaster prior to Kearney’s appointment the inspector states that “in times of ordinary business prosperity $45 a month would not be exorbitant for that portion used for mercantile purposes.” If that be true, then clearly $25 per month would be a reasonable charge for that portion of the room occupied for the post office, and there is no ground shown for holding that the government was overcharged for the premises used for the post office, except on the theory declared on in the petition, and that is that the postmaster received from the rentals and allowances a sum in excess of the amount he paid to his lessor; and, as already said, the evidence wholly fails 'to show that in fact the receipts from these sources exceeded the rental paid by Kearney.

Under these circumstances it must be held that the government has failed to prove the case declared on in the petition, and judgment must go in favor of the defendants.