576
FEDERAL RE"PORTER.
the order should not be set aside for lack of jurisdiction, but the plaintiff may be allowed to file nunc pro tunc, as of the date of the presentation of his petition, an affidavit setting forth his citizenship. Upon the filing of such affidavit, the motion to vacate the order allowing plaintiff to prosecute the action as a poor person is denied.
SCHOLFIELD
v.
UNITED STATES.
(District Court, D. Maryland. ELECTIONS-SUPERVISORS-COMPENSATION.
October 6, 1887)
Held. that a supervisor of election. duly appointed under sections 2011 and 2012, who had attended the registration of voters for 18 days, as required by section 2016, was entitled to the maximum pay of $5 a day for not exceeding 10 days, fixed by section 2031, notwithstanding a notice afterwards issued by' the attorney general that the supervisors would be expected to perform their work within 5 days, and would be paid for only (j days' service. (SyUab'll8 by the Court.)
John E. Bennett, Jr., for petitioner. Thomas G. Hayes, Dist. Atty., for the United States. MORRIS, J. The plaintiff has brought this case against the United States, in the United States district court for the Maryland district, by filing his petition in accordance with the act of congress of March 3, 1887, c.359, by which jurisdiction in cases against the United States is given to the district court where the amount of the claim does not exceed $1,000, and the claim is founded upon the constitution and laws of the United States, (except pensionsj) or upon any regulation of an executive department; or upon any contract, expressed or implied, with the government of the United States; or for damages, liquidated or unliquidated, incases not sounding in tort,-in respect of which claims the party would be entitled to redress against the United States, either in a court of law, equity, or admiralty, if the United States were suable. The plaintiff's petition has been duly served upon the district attorney of this district, and upon the attorney of the United States, as required by the act 'of congress. The plaintiff alleges that there is due to him by the United States the sum of $25 for the balance of his compensation as a supervisor of registration and election prior to and during the congressional election of 1886 in the city of Baltimore; he having faithfully and diligently performed his duties, and being entitled to $5 per day for 10 days, and having been paid only $25, payment of the balance claimed by him having been refused. The answer of the United States admits that the plaintiff has performed the services claimed for in his petition; but denies that he is entitled to receive more than the $25 already paid to him, for the reason that by a circular letter addressed by the attorney general of the United
SCHOLFIELD V. UNITED STATES;
577
States to the marshal of the district, dated the fifteenth October, 1886, the marshal was directed to notify the supervisors that they would only receive $25. The plaintiff has demurred to the answer of the United States, and joinder in demurrer has been entered. FINDINGS OF FACT.
i. I find that the petitioner was duly appointed and commissioned supervisor of election for the Ninth ward of Baltimore city, i.n the state of Maryland. by the circuit court of the United States, on the fourth September, 1886, in pursuance of sections 2011 and 2012, Rev. St., and the supplements and amendments thereto, and that he duly qualified, and entered upon his duties. 2. I find that the laws of Maryland governing registration (or congressional and other elections in the city of Baltimore require the officers of registration, for the purpose of correcting the lists of qualified voters, shall sit with open doors in the several wards ofthe city, from 9 A. M. to 9 P. M., for 15 successive days, commencing on the first Monday of September; and afterwards, for the purpose of revising the said lists, for three successive days, commencing on the first Monday of October. 3. I find that the petitioner, in pursuance of his said appointment, and of tbe provisions of section 2016, Rev. St. U. S., which authorized and required him to attend at all times and places fixed for the registration of voters who, being !egistered, would be entitled to vote for a representative or delegate in congress, and to personally inspect and scrutinize such registration, did attend tbe said registration in the said ward for which he was appointed for 15 days in September, 1886, and for 3 days in October, 1886, being October 4th, 5th, and 6th. in said year. 4. I find that the United States marshal for this district, on the sixteenth October, 1886, received from tbe attorney general of the United States a circular letter, in which he notified the marshal tbat "it is not expected tbat'supervisors and deputy marshals will receive compensation for more than five days' services,· and they should be so informed. Within this time all can he done, it is thougbt, that ought to be." 5. I find tbat the plaintiff was on duty and had performed 18 days of proper and necessary service as supervisor before the circular letter of the attorney general, relied upon in the answer of the United States, had been issued. CONCLUSION.
Section 2031, Rev. St. U. S., provides : "And there shall be allowed and paid to each supervisor of elections * * * who is appointed, and performs his duty, under the preceding provisions, compensation at the rate of five dollars per day for each day he is actually au duty, not exceeding ten day!!." Under this law the plaintiff earned and is entitled to $50 compensation, and, having received but $25, I sustain the demurrer; and I do give judgment in favor of the plaintiff, against the United States, for the sum of $25, with costs to the plaintiff, being the fees paid by him to the clerk of the court. v.32F.no.9-37
578 CASTNER V.
}'EDERAL REPORTER·. " MAGONE. CoNANT and others .". SAME. 'lJ.
SAME.
AVIS and others
(Oircuit Oourt, S. D. New York. November 7, 1887.) 1. CUSTOMS DUTIES-AcTION TO RECOVER-BILL OF PARTICULARS-SERVICE OF.
Where plaintiff in an action to recover, from a collector of customs, duties alleged to been illegally exacted, fails to serve a bill of particulan within 80 days after defendant's appearance, as required by section 8012, Rev. St., judgment of non pros. must be entered against him.
2.
BAME.
The court has no power to grant an application by plaintiff for leave to serve a bill of particulars nunc pro tunc after the expiration of 80 days from defendant's appearance. Section 8012, Rev. St.,is mandatory, not directory, in its provisions. Pott v. ArthWf', 15 Blatchf. 814, modified and distinguished.
8.
These three cases were suits against a collector of customs for the recovery of. duties paid in excess, Defendant appeared by attorney on August 17, 1887. Plaintiffs procured from defendant's attorney extensions oftim.e to ,serve their Gomplaints, which were served on September 30, 1887. The bills of particulars were annexed to the copies of the complaints so served. Defendant moved for judgments of '¥Ion pro8., un- . der section 3012, Rev. St. . Stephtm. A. Walker, U.S. Atty., and W. Wickham Smith, Asst. U. S. , Atty., for the motion. AlexanderP. Ketchum, contra. LACOMBE, J. In these three {lases motion is made by the defendant for judgment of non pr08. against the plaintiffs, under section 3012, Rev. St. This motion is based upon an affidavit showing that the action is ot1ne to recover from the defendant alleged to have been erroneo\:l.sly or illegally exacted by him as collector of customs. at the port of New York; .that the defendant duly appeared by attorney oil the seventeenthof August, 1887, by the service upon the attorney for the plaintiffs on said dlLte of a notice of appearance; arid that no bill of particulars, as required by section 3012, Rev. St. U. S., has ever been served, although the 30 days limited by the said section has long since expired. In opposition to defendant's motion, plaintiff in each case submits an affidavit by which the following facts appear: The 30-days limit by the section above cited was the sixteenth day of September, 1887, and on that day application was made for an extension of time to serve the complaint; plaintiff's attorney supposing that his clerk had, in accordance with instructions, obtained at the same time an extension of time for the service of the bill of particulars. On the thirtieth of September, 1887, and within the time covered by such extension, plaintiff served a copy of the complaint, to which was annexed a bill of particulars. Upon the argument of the motion in open court, the plaintiff's attorney applied for leave to serve a bill of particulars nuncproWilnc.