To entitle a supervisor of elections to a valid claim against
the government, he must make it appear that the services performed
were required by the letter of Rev.Stat. § 2020 and § 2026, or were
such as were actually and necessarily performed in the proper
execution of the duties therein prescribed, and that his charges
therefor are covered by Rev.Stat. § 2031, or, if not fixed in the
very words of that section, that, by analogy to some other service,
he is entitled to make a corresponding charge.
If the services were only performed for his own convenience, or
were manifestly unnecessary or useless, even if they be such as he
judges proper himself, they cannot be made the basis of a claim
against the government.
It is
held that the applicant, a Chief Supervisor,
should have been allowed for drawing instructions to supervisors,
and, in the absence of proof to the contrary, for the full amount
of his claim for auditing claims of and drawing payrolls of
supervisors, and certifying the same to the marshal, and all the
other claims, enumerated in the opinion of the court, are
disallowed.
The ruling in
Cromwell v. Sac County, 94 U. S.
351, that when a second action between the same parties
is upon a different claim or demand, the judgment in the prior
action operates as an estoppel only as to those matters in issue or
points controverted, upon the determination of which the finding or
verdict was rendered, affirmed and applied.
This was a petition by the Chief Supervisor for the Northern
District of New York for fees and disbursements connected with the
general election of 1890, amounting to $16,612.79, of which
$2,752.60 were disallowed by the Treasury Department; for like fees
and disbursements connected with the general
Page 168 U. S. 242
election of 1892, amounting to $18,998.94, of which $2,581.75
were disallowed, and also for fees connected with the examination
of witnesses to show that certain supervisors, who had been
appointed in the City of Troy to attend a congressional election in
1888, had been deterred from discharging their duties by violence,
or threats of violence, by disorderly persons. This account
amounted to $624.65, of which $402.65 were disallowed.
The petition alleged that all these accounts had been approved
and allowed by the district court.
Upon a finding of facts which do not differ materially from
those set up in the petition, the Court of Claims directed a
judgment in favor of the petitioner for $678.10, whereupon
petitioner appealed to this Court.
MR. JUSTICE BROWN, after stating the facts in the foregoing
language, delivered the opinion of the Court.
The duties of Chief Supervisors are prescribed by statute.
Rev.Stat. §§ 2020, 2026. Their fees are also fixed by statute. §
2031. To entitle a supervisor to a valid claim against the
government, he must make it appear that the services performed were
required by the letter of the former sections, or were such as were
actually and necessarily performed in the proper execution of the
duties therein prescribed. It must also appear that his charges
therefor are covered by the latter section, or, if they are not
fixed in the very words of that section, that, by analogy to some
other service, he is entitled to make a corresponding charge. If
the services are only performed for his own convenience, or are
manifestly unnecessary or useless -- even if they be such as he
judges proper himself -- they cannot be made the basis of a claim
against the government.
Page 168 U. S. 243
The petitioner in this case made a claim for his services in the
general elections of 1890 and 1892 in the aggregate sum of
$35,611.73, of which but $4,265.13 appear to have been for
disbursements. Of this very large amount there was disallowed but
$5,334.35, an amount which was further reduced by the judgment in
his favor of $678.10 to $4,656.25, which is the amount in dispute
here.
If the petitioner be entitled by law to the further sum claimed
for what are in the main clerical services, he must receive
judgment for them; but, as the dates of the approval of his
accounts show that his services did not extend over a period of
more than six months, he has at least no reason to complain of the
illiberality of the government.
The approval of the district court goes only to the facts that
the services were rendered as stated in the accounts, and that, in
certain matters of discretion, the discretion was properly
exercised.
United States v. Jones, 134 U.
S. 483;
United States v. Barber, 140 U.
S. 177,
140 U. S. 179.
Neither of these cases requires the allowance of charges obviously
unnecessary.
The items disallowed by the court below will be considered in
their order:
1. -- Item 4. Drawing instructions to supervisors, relative to
their duties, 106 folios at 15 cents a folio, $15.90. As this
charge was expressly allowed in
United States v.
McDermott, 140 U. S. 151,
140 U. S. 154,
� 5, and in
United States v. Poinier, 140 U.
S. 160,
140 U. S. 163,
� 3, we do not understand why the item was rejected. Apparently it
was an oversight. The Attorney General concedes the allowance in
his brief.
2. -- Item 5. Making copies of applications from different
cities for appointment as supervisors, to be annexed to the reports
made to the judge, 1,950 folios at 15 cents a folio, $279.50.
Rev.Stat. § 2012, requires that the court, when opened, shall
proceed to appoint and commission under the hand of the judge two
resident citizens of each election precinct, who shall be of
different political parties, etc., as supervisors. Section 2026
seems to contemplate that the judge shall obtain his information as
to the competency of the persons receiving these appointments
through the Chief Supervisor,
Page 168 U. S. 244
who is charged with the duty of receiving the applications of
all persons for appointments to such positions; of presenting such
applications to the judge, and furnishing information to him in
respect to the appointment of such supervisors. The law does not
require or contemplate that the original applications shall be
retained by the Chief Supervisor, but rather that they shall be
presented to the judge, who may preserve them or not, as he sees
fit. There is not the slightest necessity for making copies of
them. The offices to be filled are purely temporary, and as soon as
the election is held and the reports made, the supervisors are
functi officio. The office of the applications is even
more temporary than that of the supervisors, since as soon as the
appointments are made, the applications have served the purpose for
which they were intended. To speak of them as the official records
of the Chief Supervisor is to dignify them with a title and
importance entirely foreign to their real functions. To retain the
originals and furnish the judge with copies is only to burden the
government with an utterly useless expense. There is nothing to
show that these copies were ordered by the court.
3. -- Items 7, 8, 10, 13, 14, 21, and 27 are all of one class,
and fall within the same general principle. They are for entering
and indexing special letters of instruction to each local
supervisor, containing a notice of the supervisor's appointment,
and general directions with regard to the method of obtaining his
commissions or concerning the proper discharge of the duties of his
office -- some enclosing blank reports to be made of proceedings at
the meeting of the boards of registration, others requiring a
report of the vote cast, still others notifying the supervisors of
the days allowed and the amount due, with special orders requiring
them to verify their lists, and similar directions germane to the
proper discharge of their functions. The aggregate amount of these
items is $1,447.65.
We see no reason for entering or indexing these letters of
instructions. There was no necessity for making separate memoranda
of them -- much less copying them or preserving
Page 168 U. S. 245
duplicates. The regular course of business of the office would
authorize one to infer that instructions were sent to the local
supervisors in each case, and the names in the supervisors'
commissions would show to whom these instructions were sent. We
held in the case of
United States v. McDermott,
140 U. S. 151,
140 U. S. 154,
that the Chief Supervisor was entitled to 15 cents per folio for
preparing and furnishing proper instructions to supervisors, and
that he was also entitled to the expense of printing copies of such
instructions for the use of the local supervisors, but that he was
not entitled to a folio charge for each copy so furnished.
It is equally clear that he is not entitled to a charge for
entering and indexing them, as they are no proper part of the
records of his office. Letters of instructions are not "records" in
any sense of the word.
4. -- Items 9, 22, 23, and 24 are for entering and indexing
special reports of the supervisors of election, either of the
proceedings at the meeting of the board of registry or of other
matters connected with the registration, election, or compensation
of the supervisors.
Petitioner is doubtless entitled to a fee of 10 cents under
Rev.Stat. section 2031, for filing and caring for each of these
special reports, which are a proper part of the records of the
office, but we think the entering and indexing them were an
unnecessary burden upon the government. These items are therefore
disallowed.
5. -- Items 11 and 25. Entering and indexing reports on
presentation of applications for the appointment of supervisors of
election, which reports furnished information to the judge in
respect to the qualifications of each applicant, $355.95 and
$101.10. These reports are made to the judge, and are no part of
the records of the Chief Supervisor's office. By section 2031, the
charge for "entering and indexing" can only be made where the
papers are a part of the records of the office. In view of the
temporary character of these appointments, the word "record" should
receive a narrow construction, and be limited to such documents and
entries as might subserve some useful purpose in the future. The
office of
Page 168 U. S. 246
these reports is performed when they are submitted to the judge
and the appointments are made. If he deems them of any importance,
their custody belongs to the court, and not to the supervisor. The
copying and entering of them upon his records can be of no possible
utility. It belonged to the court to determine for itself what
should be done with the originals.
6. -- Item 12. Entering and indexing payrolls of supervisors of
election, and certifying the same to the marshal, $76.95. It
appears to have been the duty of the Chief Supervisor, under the
instructions of the Attorney General, to audit and certify the
amount due the supervisors, but we see no necessity for preserving
copies of them in the records of the supervisor's office. The
charge in this case is not for auditing and certifying the amounts,
but for entering, by which we understand copying and indexing the
payrolls, which we consider an unnecessary burden.
7. -- Items 15 and 28 include charges to the amount of $630.60,
for drawing oaths of supervisors, two folios. The controller
allowed one folio for each oath. The oath contained the statement
formerly required by section 1756, that the affiant had never borne
arms against the United States, etc., which was repealed by the Act
of May 13, 1884, 23 Stat. 21, the repealing act providing that in
the future every person appointed to any office should take the
oath prescribed by section 1757. The oath thus prescribed is less
than one folio in length. The case is evidently not one for a
liberal construction of the statute. These items are accordingly
disallowed.
8. -- Item 17. Auditing claims of and drawing payrolls of
supervisors of election for their claims for service, and
certifying the same to the marshal for payment, 773 folios, of
which the controller disallowed 531 folios, the difference being
$81.60. There is no finding in connection with this item as to
whether the count of the supervisor or of the controller was
correct . Nor is any reason given for the disallowance of the 531
folios. As the account was verified by the oath of the claimant
that each and every service charged therein had been necessarily
performed, and as the district court allowed the item, we
Page 168 U. S. 247
think it was incumbent upon the government to show that the
claimant charged for an excessive number of folios. We are
therefore of opinion that this item should be allowed.
9. -- Item 18. Entering and indexing applications of persons
applying to be appointed supervisors of election, etc., $286.95.
This was not a charge for filing recommendations for appointments
or for indexing appointments, which charges were allowed in
United States v. Poinier, 140 U.
S. 160, but for entering and indexing the applications.
As we have already held that the law does not contemplate that
these papers shall become the records of the office, the service
was evidently wholly unnecessary.
10. -- Items 19 and 20. Entering and indexing the oaths of
supervisors and special deputy marshals, of which the controller
allowed a part and disallowed a larger part, the difference being
$671.70. It does not appear why the controller allowed less than
one-half of these items, but, as we think the whole charge should
have been disallowed, it is unnecessary to seek an excuse for
disallowing a moiety. It is true that Rev.Stat. § 2027 requires the
commissioners with all due diligence to forward to the Chief
Supervisor all oaths of office administered to any supervisor of
election, in order that the same may be properly preserved and
filed. They thereby become a part of the records of the Chief
Supervisor's office, and he is properly entitled to a fee for
filing the same; but it does not therefore follow that he is
entitled to a separate fee for entering and indexing them. As we
observed in
Poinier's case, page
140 U. S.
162,
"it does not, however, follow that every paper which the law
authorizes to be filed must therefore be recorded or copied. To
entitle a paper or document to be recorded, it should have some
permanent value. Where the original paper is preserved or filed --
such, for instance, as the pleadings, exhibits, depositions, or
other papers in a common suit at law or equity -- no necessity
ordinarily exists for its being recorded. As a charge for ten cents
for filing these informations was allowed by the department, the
exception to this item for recording and indexing is therefore
sustained."
The same remarks are applicable to the charge in this case.
Page 168 U. S. 248
The petitioner was entitled to 10 cents for filing and caring
for every paper to be filed by him, but he does not thereby become
entitled to a separate fee for entering and indexing them.
11. -- Item 26. Making, entering, and indexing records, such as
mail lists containing supervisors' names and post office addresses,
with columns for checking matter sent out by mail, and also
receiving lists, etc. These lists are obviously no part of the
record, and the item should be disallowed.
12. -- Item 31. Entering and indexing certain depositions and
evidence taken in the matter of the claim made that certain
supervisors had been unable to discharge the duties of their office
by reason of violence and threats of violence, $172.35. For the
reasons already stated with reference to the items for entering and
indexing oaths, we think that the supervisor was entitled to a
charge of 10 cents for filing these depositions, but he is not
entitled to the large charge of $172.35 for entering and indexing
them. This charge is also disallowed.
The underlying vice of the petitioner's theory throughout this
whole account consists in the assumption that every paper or
document which comes into or issues from his hands, or is prepared
by him officially, even though it be for a purely temporary
purpose, constitutes an official record, and that it is within his
discretion that every such paper shall be entered (copied) in
durable books and indexed in a permanent form. This is not the
case. Even in courts of justice, which are a permanent feature of
every civilized government, the judgment record which the clerk is
authorized to enter in a book kept for that purpose does not
include every paper found in the files of the case, nor even the
depositions of witnesses, but is confined to the pleadings and
proceedings necessary to make up a complete history of the suit.
Much more is this the case with the records of the Chief
Supervisor, which exist only for a temporary purpose, and after a
year or two lose practically their entire value. It is true that
the Chief Supervisor is entitled to exercise a certain discretion
as to what papers he shall enter upon a permanent book, but to
enter a
Page 168 U. S. 249
hundred letters, each of which must be substantially a copy of
every other, excepting the address, is so manifestly an abuse of
his discretion that no court should tolerate it for a moment. It is
not for us to determine what are the records which should be
entered and indexed. It is sufficient to say that, for the purposes
of this case, we have no difficulty in determining what are
not.
The plea of
res judicata, arising from the fact that
the claimant brought an action in 1887 in the Court of Claims to
recover for various items of service of the same nature and
description as those claimed in this case, and that the court found
in his favor and rendered judgment against the United States for
the amount claimed, is not well taken. There is no finding of fact
in connection with this plea, and we can only judge of what the
issue was by reading the opinion of the Court of Claims. 25 Ct.Cl.
304. From this opinion, it appears that the items of the account
were not passed upon in detail, but that the court rendered
judgment in favor of the claimant upon the ground that the approval
of the account by the district court, under the decision in
United States v. Jones, 134 U. S. 483,
threw upon the government the burden of disproving the correctness
of the several items. That the court did not approve the items as
charged is evident from its statement that
"on the argument, it was maintained by the counsel for the
government that the claimant had failed to establish the quantum of
his services and expenditures by competent evidence, and, as to
many of the items, such is the opinion of the court."
Further than this, however, the suit under consideration is not
for the same items as those allowed in the former case, but for
similar items, and the case falls within our ruling in
Cromwell
v. County of Sac, 94 U. S. 351,
that
"where the second action between the same parties is upon a
different claim or demand, the judgment in the prior action
operates as an estoppel only as to those matters in issue or points
controverted, upon the determination of which the finding or
verdict was rendered."
There was no issue raised and decided in the former case as to
the legality of the several items considered separately, but such
issue is clearly raised in this case.
Page 168 U. S. 250
While we think the judgment of the Court of Claims was correct
with respect to all the items involved in this case, with the
exception of two, the aggregate amount of which is $97.50, for its
error in respect to those two the judgment will have to be varied
by increasing the same from $678.10 to $775.60, and subject to such
increase it is, in all other respects,
Affirmed.