FEbEBAL RltPOl\'l'ER, '\>'01;
41.
"And then, when sought to be helliliable·for the negligence of A.B. in tbemanagernent of said work, causing injury to one under his control, say: "A.B. did not represent the' company. He was not the head of a or ita equivalent. The work at which j'OU were employed underhiscontrol'waa a small matter. .Only a few men were subject'to hisor'ders. He was not clothed with the dignity of a vice-principaL He bossed you, but he did not represent the company. He was merely your co-servant; and the company, which required you to obey his orders, is not responsible 'for the result of such orders." The test is not necessarily to be found in the extent of the work to be done, in the number of men employed, the size of a yard, or other like considerations. When the work to be done is of such a nature that supervision thereof is required, and the company confides to one the duty of exercising control and management, and demands of others obedience to his behests, it cannot be l',aid that all occupy the same position towards the company, ana towards each other. In the management of the business, the one speaks for and represents the company, and, in carrying out the orders or obeying the directions of the one, the others are obeying the commands of the master. For negligence in the exereise of the duty of supervision and control, which is a duty of the master not to be evaded, the corporation is responsible to one injured thereby, unless he is also guilty of negligence contributing to the injury. The test of responsibility, it seems .to me, must be sought in this matter of the exercise, on the one hand, of control and supervision, and on the other of the duty of obedience to' such supervision; and this relation may exist without regard to the extent of the work intrusted to the supervision of the representative of the company. Such seems to me to be the tendency of the later decisions upon this question, and, on principle, it seems to me to be the rule best calculated to produce beneficial results, when applied to the relations between railway companies and their 'numerous classes of employes.
WALKER
v.
UNITED STATES.
(.rnBtrlct Oourt, E. D. Mf.8.OW'f" E. D. Maroh 18, 1890.)
1.
ELEO'I:ION&.-CHIIIlF
Rev. St. U. S. § 2026. whioh it the dlfty of the ohief su,pervisor of elections to receive applioations for appointment as supervisors, and to lay them before the court, and to furnish iufol'IUation to the court with respect.to the applioants,does not oontemplate that tile ohief supervisor shall prepare the applicants' petitions, and no fees are payable for suoh servioes.
FOR ApPOINTMENT.
9.
SAME-!NSTRUCTI()NS TO SUPERVISORS,
Under secti0'l2026, making it the du,ty of the ohief supervisor to "prepare and furnish * * 'instructions for the use and direotion of the supervisors,» and section 2031, allowing him 20 cents.foraJRxing his slll}l to any dooument, he is entitled to fees for furnishing instruotionsauthentioated under his seal; the fee being the same per folio as that allowed for drafting papers, examinations, etc. .,
8.
Sum-NOTICES TO SUPERVISORS.
No fee. is allowable "for drafting tration hsts. II· ,
to superVisors to appear to verify regis-
WALKER fl. UNITED STATES.
&. BAlPll-FrJnrG
I. 8.
As no provision of law makes it the duty of the chief supervisor to take receipts from supervisors for 1:Jopks, papers, and blanks furnished· them, such receipts are not documents which the law contemplated should be filed as a part of the records of the office, within the meaIiing of sections 2026, 2081, allowing a fee for filing such documents. No fee can be allowed the· chief supervisor for "drafting accounts of supervis.ors. "
SP-PERVISORS' RECEIPTS.
SAME,...DRAFTING SUPERVISORS' ACCOtmTs.
SAM)!:-,{)ATH TO SUPERVISORS'VOP-ClIERS.
He is entitled to fees for administering oaths to accounts, and "attaching the certificate or jurat, "but not for affixing liisscal to the certificate or jurat. ' As section 2020 requires the supervisors' reports to the chief supervisor to be under oath, he is also entitled to fees for administering oaths to special reports reo quired by him, and affixing his certificate thereto.
7.
SAME-OATHS TO SPECIAL REPORT.
SAMII-LISTS FOR MAHSIIAL.
9. 10.
No fee is allowable to the chief supervisor "for making out a list of supervisors for the use of the United States in making a retluisition for funds," and "certifying to correctness of same," nor for drafting notICes to supervisors to report and receive vouchers for service. " There is no provision of law requiring duplicate vouchers to be made out and attached to'the pay-roll, hence no fee is allowable for certifying such duplicates.
SAME-CEBTIFYING DUPLICATE VOUCHERS.
Under .section 2026, requiring the chief supervisor to and furnish all necessary books, forms, blanks," etc., he is entitled to be reimbursed for expenses . "for printing blank forms of application for appointment as supervisors, and for printing blank forms of oaths to be taken by supervisors."
SAME-ExPENSES FOR PRINTING BLANKS.
At Law. George D. Reynplds, U. S. Dist. Atty. Wm. R. Walker, pro se.
St. 505,) by the chief supervisor of elections of this judicial district, for
THAYER,J.
This is a suit under the act of March 3,1887, (24 U. S.
disallowed fees amounting, in the aggregate, to 3742.30. Exhibit B, attached to the petition, contains an itemized statement of the fees claimed and disallowed. No further statement of the facts seems to be necessary than that the evidence shows that all the services were rendered for which compensation is claimed. As usually happens in this class of cases, the question is not whether the services were rendered, but whether any law of the UJ;lited States required them to be rendered, and fixed the compensation therefor. CONCLUSIONS OF LAW.
items, Nos,. 2 and 3, are "for supervisors,containin'g 50 folios," and" for affixing his, offi,cial seal" to ,cQpyof the furnished to 315 super-vlsprs. Section 2026, supra, makes it the duty of the chief supervisor to "prepare and *. * for the u,seand direction' of the supervisors or election." The instructions so prepared and furnished should, be authe,nticated by the chief supervisor's seal of office., clearly 'contempIatesthat he shall have anofticial seal, and allows him 20 cents for affixing it to any document. Fifteen cents per folio is also the sum allowep. for draftl;n.g papers, examina\ions, etc., and' for, makillg, and indexing the records of his office. '. These two items, amounting to 870.50, seem to be valid charges against the United States provisions of .law last cited, a:nd they are hereby allowed. Similarfees'fof preparing instructiolls have been allowed' by other courts. Guyer S., iupraj Poinier v. U. S., 40 Fed. Rep. l3l}. 3. The next item, No.4, "for drafting notices to supervisors to appear·; The service was, td'verify no doubt, properly rendered; but the law does not mention ,auch a serviM,noi' a fee therefdr. It was probably assumed that the suofficers oUhe law, would appearheforethe chief supervisor without notice, iWhenthey had duties to perform requiring such appearance. At all events, as the chief supervisor receives a per diem allowance, besides fees, it must be held that the 1!er diem allowance covers such incidental services, properly rendered, as arandt mentioned in the statute, or provided for in the fee-bill. next ,item, N9·. "for filing 303 receipts for books and pa4., pets," is an improper charge, in my opinion, and is disallowed. Seetion,2031, a cents "for filing an(l'caring for every returIi, report, record,document, or other paper required to he filed;" and Section 2026 requires the chief supervisor to "receive, preserve. and file all oaths of office, . '" ", '" '", . and all certificates, returns, reports, ' and records, of every kind'and nature,contemplated. or made requisite by'the piovisions"of thanet. No of the nct makes it the chief superVisor'sdl;lty totake'receipts from supervisors for books, papers, and' blanks furnished them;' and such' receiptEl, if taken, can hardly beesteemed documents which law contemplated should be filed as a part of the records of his office. ,They are mere memorandums, which the chief superVisor may or,'Wigy not cause to be made. ' He violates no duty if he omits such receipts. ' 5. Items 6, 7, 8, and :9" "for drafting accounts of supervisors," and' for" administering oath' their for "atta.ching certificatestir jurats to sudh'oaths, " and "affixing seal to such certificates," tilft'y be considered. col1ectively.. It is no'part oftlie'thity of the chief BU pervisor, so far as' I Mn 'ascertain, 'to draft the accounts of his subordinates. They to do that for The first of the fbur items hist, mentioned, $90;90, is accordingly tlisa:llowed.' second nnd1 third'items of the foui' last mentioned, "for,admiliister.' ing the oath to accounts," and" attaching the :or will
v.u.
I
.W'ALltER
UNITED STATES.'
.be; allowed, in conformity with the decisions in -McDermott v'. U. S., -'lild. Rep. 220, and Gayer v. U. S., supra. I disallow the last of the fout items mentioned; that is, the separate charge for affixing the seal to 'the certificate or jurat. The jurat was not com plete without the seal; and the Should not be to charge for the jurat, and also, as an inde· service, :for. affixing his official seal thereto. ., 6.: The tenthl'!eleventh; and twelfth. items oCtile account, ministering oaths to special reports of su pervisors," and "for attaching certificate or jurat thereto," and "for affixing seal to jurat," may be collectively disposed of. Section 2020, Rev. St. U. S., requires reporte made by supervisors of election to the chief supervisor, to be under oath, although they are sworn officers; and there can be no doubt that it is within the power of the ,chief supervisor to call for special 'reports from his subordinates, when he deems necessary; and such special reports. it may fairly be im.plied, sho)lld likewise be under oath. Items 10 and 11 will, accordingly, be allowed; but item No. 12, for affixing seal to the jurats, will be disallowed, for reasons mentioned above, in paragraph·5 ofthisopinion. . ., 7. The following items, Nos. 13, 14, and 15, I'for making out a list of supervisors for the use of the United States marshal in requisitioI;1 for funds," and "for certifying to the correctness of said list," and "for drafting notice to supervisors to report and receive vouchers for service," will each be disallowed. Such services appear to have been' wholly voluntary, and no provision is made by law for their payment. 8. A charge is made "for duplicate copies of oathll,of supervisors to be attached to pay-roll," and "for certifying to the correctness of the accounts of supervisors," and" for affixing seal to jurat or certificate to the same." Items Nos. 16, 17, and 18. In paragraph 5 of this decision, I have, on, the' strength of certain decisions cited, allowed the plaintiff compensation for oaths administered to verify the accounts of supervisors, the government required such verified accounts ,as on the ground vouchers to the pay-roll. There is no provision oflaw, however, requiring duplicate vouchers to b.e made out, and I accordingly disallow the three items last mt:lntioned. 9 The final, charge cOlltained in the account, for $17 expended by the plaintiff "for printing blank forms of application for appointme]Jt as supervisors,' and for printing blank forms of oaths to be taken by supervisors," appears to the court to be a lawful expenditure, and the same will be allowed. Section 2026 requires the supervisor in chief, as before mentioned 1. to "prepare, and furnish all necessary. books, forms, blanks, etc." It was not intended that the officer should furnish such books and blanks at his own expense. The intendment· is clear that· the ment would:reimburse the supervisor for all such necessary expenditures; and it is also manifest that blanks ofthe kind mentioned were necessary for the ebnvenient and expeditious discharge of the officer's duties. I amil.ware that. inP¥nie:r ". U.S.,8Wpra, an allowance. \Vas refused for providing I(blank f<?rrns of application for appointment as supervisors;" but, as the chief'supervisor is required to present such applications to the court
676
FEDERAL REPORTER,
vol. 41.
when reoeived, and to give information to the court respecting the ap.plicants,! he may very properly prepare blank forms of application, indicating in a general way the information that such applications should contain. The whole charge is accordingly allowed. The is that items Nos. 2, 3, 7, 8, 10, 11, and 19 of Exhibit B, aggregating $239, are allowed, and jUdgment ordered for that amount. The 'other items of the exhibit,amounting to $503.30, are rejected as not being valid claims agaiust the United States.
HYMAN tI.
EAMES et aI.
(OirC1lif,t OCYUirt, D.Oo"torado.:March 21, 1890.)
L
NBW.TRuL-DISQUALIFIOATIC)N QJ'
JUROR. Where the question on motion for new trial is whether a juror declared himself in favor of one of the parties before the trial, and there is evia,ence to show that he did. so, the affidavits of the other jurors Showing that he made similar declarations in the jury-room are admissible.
2. SAMB. Where, in a case based' oncon1licting and voluminous testimony, it appears that one of the jurors had prejudged the case, and concealed that fact ftom the defeated party, a new trial should be granted.
At Law. On motion for new trial. O.J.Hughes; for plaintiff. Willard Teller and Wolcott &Vdile, for defendants. 'HALLETT, J.The principal point in support oftbeinotion.for new trial is that one of the jurors had prejudged the base, andthe fact was concealed from plaintiff and his counsel, and was n?tascertained by themuutil after the verdict.Was, returned. Upon exaDJ.iHation on voir dire the juror stated that he. was no't acquainted with the premises in dispute; that he knew nothing ofthe 'controversy, and had formed no opinion concerning it; and that he was entirely impartial between the parof Jesse Sinclair, in which the .latter ties. Plaintiff files the depose&,that he met the jurdi: Atkinson at Aspen, in the months of August an,d.September, 1889, and ha:dseveral conversations 'With him conthese parties. He describes the conversacerning the litigation tiona in these words: "That alfiant in these collverslttIoIl5 a:rgued that the oreal:!owing and mined In the Bonny Bell claim had broken aver from the ridge above, and did not believe that it was a continuous vein or lode, within the meaI!ing of the law, but simply 8 · break over.' That ,the said Atkinson argued!with affiant tothe contl'arYI claiming that tbe BO!lny Bell had a vein with, an apex. and that t,he same. was contin uous, and o,wners of said Bonny Bell claim had a right to follow it. And the ssidA.tkinson also stated thstthe BonIlY Bell had won thefr'rst suit, would Win the second, and would win every time. That his remarks with regard to the'litigation was in fa VOl' of the Bonny Bell, and he expressed his belief in' the correctness of their position. "