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into that section was handled exclusively by party and received by the other for transporthe employees of the Michigan Central Com- tation, the deposit being accessory merely to pany, and the Grand Trunk Company paid such transportation. 3. No further orders that company a fixed compensation per hun- or directions from the Grand Trunk Comdred weight for such work as well as for the pany were expected by the receiving party. use of its section.

Except for the occurrence of the fire, the Goods coming into that section from the goods would have been loaded into the cars Grand Trunk Railroad to be carried over the of the Michigan Central Company, and forroad of the Michigan Central Company, warded, without further action of the Grand after being unloaded were deposited by the Trunk Company. 4. Under the arrangeemployees of the latter company in a certain ment between the parties, the presence of the place in the Grand Trunk section, from goods in the precise locality agreed upon, and which they were loaded into the cars of the the marks upon them, 'P. & F., St. Louis,' Michigan Central Company by its own em were sufficient notice that they were there for ployees, whenever that company was ready transportation over the Michigan road toto receive them; and after being so placed wards the city of St. Louis; and such was the employees of the Grand Trunk Company the understanding of both parties.” Referdid not further handle such goods.

ring to the section of the freight building Whenever the agent of the Michigan Cen- specially used by the Grand Trunk Company, tral Company saw any goods deposited in the the court said: “It was a portion *of the[358) section of the freight building used by the freight house of the Michigan Company, in Grand Trunk Company and which were to which a precise spot was selected or set be carried over the line of the former com- apart, where the defendant might deposit pany, he would call on the agent of the latter goods brought on its road and intended for company in the building, and from the way transportation over the Michigan road, and bill exhibited by the agent of the Grand which, by usage and practice and the ex pecTrunk Company take a list of such goods, tation of the parties, were then under the and would then for the first time learn their control of the Michigan Company, and to be place of destination, together with the loaded on to its cars at its convenience, withamount of freight charges due thereon. out further orders from the defendant." From the information thus obtained a way We do not think that the judgment in bill would be made out by the Michigan Cen. Pratt v. Railway Company controls the detral Company for the transportation of the termination of the present case. In many goods over its line of railway, and not be important particulars the two cases are mafore.

terially different. In the Pratt Case the The goods referred to in the Pratt Case court proceeded upon the ground that the were taken from the Grand Trunk cars on goods were deposited in a section of a freight the 17th day of October, 1865, and deposited building set apart by the conneccing carrier, in the apartment of the freight building used the owner of the building, for goods coming by the Grand Trunk Company in the place over the line of the first carrier to be transassigned for goods so destined.

ported in the cars of the connecting carrier **At the time the goods were forwarded from to the place to which they were consigned, Montreal the way bill in accordance with the goods having been unloaded cy the emusage in such cases was made out in dupli-ployees of the connecting carrier and by cate, on which were entered a list of the them deposited in that section, to be put by goods, .the names of the consignees, the such employees into the cars of that carrier places to which they were consigned, and the at its convenience. It was a case in which the charges against them from Liverpool to De- goods passed under the complete control and troit. The conductor having charge of the supervision and into the actual custody of train containing the goods would take one of the connecting carrier from the nument they these way bills, and on arriving at Detroit were deposited in the section set a part for wculd deliver it to the checking clerk of the them. Grand Trunk Company, "from which said In the case at bar, the facts plainly indiclerk checked said goods from the cars into cate that although the goods had been placed said section.” The other copy would be for- by the first carrier upon the wharf, and alwarded to the agent of the Grand Trunk though that was the place at which the Company at Detroit. “It was the practice steamship company was to receive or usually of the Michigan Central Railroad Company, received goods from the railway company before forwarding such goods, to take from for further transportation, they were not in said way bill in the custody of said checking the actual possession or under the actual clerk, in the manner aforesaid, the place of control of the connecting carrier at the time destination and a list of said goods, and the of the fire. The connecting carrier had not amount of accumulated charges, and to col given a mate's receipt for the cotton or aslect the same, together with its own charges, sumed control of it. True, it had received of the connecting carrier.”

notice that the goods were on the wharf and This court, in view of these facts, said: could be taken into possession, but such no"We are all of the opinion that these acts tice did not put the cotton into the actual constituted a complete delivery of the goods custody of the connecting carrier. The opto the Michigan Central Company, by which portunity given it to take possession or its the liability of the Grand Trunk Company mere readiness to take possession was not was terminated. 1. They were placed with | under the contract equivalent to placing the in the control of the agents of the Michigan cotton in the actual *custody of the steam-[359) Company. 2. They were deposited by one'ship line. The undertaking of the railway

company was to transport safely and deliver the hands of the carrier itself or its servant to the next connecting carrier. But its fur or some person authorized by the carrier to ther express agreement was, in substance, receive it, and that if it was merely deposited that if any carrier incurred liability to the in the yard of an inn, or upon a wharf to shipper in respect of the goods, that carrier which the carrier resorts, or in the carrier's alone was to be liable who, at the time the cart, vessel, or carriage, without the knowl. cotton was damaged or lost, had it in actual edge and acceptance of the carrier, its servcustody. In other words, the delivery to the ants or agents, there would be no sufficient connecting carrier which would, as between delivery to charge the carrier, the court the first carrier and the shipper, terminate said: "But this rule is subject to any conthe liability of such carrier, must have been ventional arrangement between the parties a delivery that put the cotton into the ac- in regard to the mode of delivery, and pre tual, not constructive, custody of the con- vails only where there is no such arrangenecting carrier. To hold otherwise is to ment. It is competent for them to make eliminate from the contract the clause re such stipulations on the subject as they see lating to actual custody. The cntire argu. fit; and when made they, and not the general ment of the learned counsel for the railway law, are to govern. If, therefore, they agree company in effect assumes that the contract that the property may be deposited for transmeans no more than it would mean if that portation at any particular place without any clause were omitted. But the court cannot express notice to the carrier, such deposit hold that that clause is meaningless, or that merely would be a sufficient delivery. So is it was inserted in the contract in ignorance in this case the defendants had not agreed to of the meaning of the words “actual custo- dispense with the express notice of the dedy.” Nor can it be supposed toat the par. livery of the property on their dock, actual ties understood the contract to mean that notice thereof to them would have been neces. the connecting carrier was to be leemed to sary; but if there was such an agreement, have actual custody from the moment it the deposit of it there merely would amount could have taken actual custody if it had to constructive notice to the defendants, and seen proper to do so. So far as the shipper constitute an acceptance of it by them. And was concerned, the actual custody of the first we have no doubt that the proof by the plaincarrier could not cease until it was in fact tiff of a constant and habitual practice and displaced by the actual custody of the con- usage of the * defendants to receive property[361 necting carrier. It may be that the railway at their dock for transportation in the mancompany has good ground for saying that, as ner in which it was deposited by the plainbetween it and the connecting carrier, une tiff, and without any special notice of such latter was bound to take actual custody deposit, was competent, and in this case sufwhenever the railway company was ready to ficient, to show a public offer by the defend. surrender possession, and thereby relieve the ants to receive property for that purpose and latter from possible liability to the shipper in that mode; and that the delivery of it in the event of the loss of the cotton while in there accordingly by the plaintiff in pursuits custody. That is a matter between the ance of such offer should be deemed a comtwo carriers, touching which we express no pliance with it on his part, and so to coriopinion. But we adjudge that the shipper stitute an agreement between the parties by cannot be compelled, when seeking damages the terms of which the property, if so defor the value of his cotton destroyed by fire posited, should be considered as delivered to in the course of its transportation, to look to the defendants without any other notice. any carrier except the one who had actual | Such practice and usage were tantamount to custody of it at the time of the fire. . One of an open declaration, a public advertisement the conditions imposed upon him by the con- by the defendants, that such a delivery tract was that if any carrier became liable to should of itself be deemed an acceptance of

him he should have no remedy except against it by them for the purpose of transportation; 1860]the one having such *actual custody. and to permit them to set up against those

That remedy should not be taken from him who had been thereby induced to omit it, the by a construction of the contract inconsis- | formality of an express notice, which had tent with the ordinary meaning of the words thus been waived, would be sanctioning the used.

greatest injustice and the most palpable The two cases in the supreme rourt of Con- fraud." necticut which were cited in Pratt v. Grand Converse v. Norroich & New York TransTrunk Railway Co. undoubtedly sustain the portation Co. 3 Conn. 166, 181, involved the principles announced in that casc, but they question whether certain goods had been dedo not militate against the views we have ex-livered to the conuecting carrier prior to pressed in this case.

their destruction by fire. The wharf and Merriam v. Hartford de New Haven Rail- depot building in which the goods were deroad Co. 20 Conn. 354, 360, was an action on posited by the first carrier were owned by the case for negligence on the part of a rail. the connecting carrier, and the first carrier road company in the transportation and de-paid an annual rental for its use in its busilivery of certain goods, and in which it was ness. The court, among other things, said: a question whether the goods had been de “We have no difficulty in determining, indeed livered to the company before their destruc- we must hold, that there was a mutual tion. After stating the general rule to be agreement, or tacit understanding equivathat, in order to charge a common carrier for lent to such an agreement, that the transthe loss of property delivered to it for transportation company should place the through portation, the property must be delivered into freight at that precise spot, and that the

Northern road should take it from thence at become a warehouseman. It bad done no a time convenient to them. The construc- act evidencing its intention to renounce the tion of the depot and the uniform usage are one capacity and assume the other. Al. conclusive of it. The depot was constructed though it had requested the steamship line with a platform by the side of the track for to remove the cotton, it had not specified any the reception of goods to be taken from or particular time within which compliance was put into the cars; and on that platform the insisted on, and had not given notice that the railroad company in the first and every in cotton would be kept or stored at the risk of stance of delivery by them placed their the steamship line upon failure to comply freight, and the transportation company at with the request. The request to come and their convenience took it away and carried remove it ‘as soon as practicable' was, in ef.

it on board their boat. And so the transpor- fect, one to remove it at the earliest conven(362)tation *company in like manner in the first ience of the steamship line. There is noth

and every instance placed there the freighting in the case to indicate that the defendant
for the Northern road; and they at their had not acquiesced in the delay which inter-
convenience put it in their cars and took it vened between the request and the fire.” 51
away. And the usage was precisely the U. S. App. 676, 686. *
same with the Worcester road. :.. Upon Under the views expressed in this opinion,
this wharf and into the inclosure the North it is unnecessary to enter upon a review of
ern road laid their track for the delivery the numerous cases cited by counsel for the
and reception of freight to and from the railway company in their able and elaborate
transportation company. Both parties then brief to support the different propositions
contemplated a delivery and reception on discussed by them.
this wharf and in this inclosure, and obvi-! We are of opinion that the circuit court
ously in the precise manner actually pursued. did not err in directing a verdict for the
... It is clear, then, that both the trans- plaintiff, and the judgment is affirmed.
portation company and the Northern road
contemplated that a placing of freight by
either intended for the other upon that
platform was all that either was to do by UNITED STATES, Piff. in Brr.,
way of delivery of their freight to each
other."

JESSE JOHNSON.
It is to be observed that neither in the
Pratt Case nor in the Converse and Merriam (See s. C. Reporter's ed. 363-381.)
Cases was there any clause in the contract
between the parties to the effect that the Special compensation of district attorney.
shipper, in enforcing his claim for liability,
should look alone to the carrier who had the Services of a United States district attorney in
actual custody of the goods at the time they instituting and conducting proceedings on be.
were lost or destroyed. It is the clause of half of the government for the condemna.
that character in the bill of lading now in tion of land for public purposes, within his
suit which makes the judgments in the district, are such as the law requires the dis-
Pratt, Converse and Merriam Cases inap-

trict attorney to render, and consequently he

can receive no special compensation therefor. plicable to the present case.

as such proceedings constitute a civil action A further contention of the defendant is

within U. S. Rev. Stat. $ 771, and are the busithat at the time of the fire it held the goods,

ness of the United States within $ 824.
if at all, only as a warehouseman and not as
a common carrier, and that the circuit court
erred in not so instructing the jury. We

(No. 59.]
cannot assent to this view. As the goods
had not at the time of the fire passed into

Submitted November 10, 1899. Decided the actual custody of the steamship com

February 27, 1899. pany, and as the contract expressly declared that if any carrier was liable for their de-InN CERTIFICATE from the Voited States struction that one alone should be liable in U Circuit Court of Appeals for the Second whose actual custody the goods were when Circuit certifying to this court certain quesdestroyed, the defendant could not escape re- tions of law upon which the Circuit Court sponsibility by showing that the connecting of Appeals desired instructions in an action carrier could by reasonable diligence have brought by Jesse Johnson, plaintiff, in the taken actual custody prior to the fire. In other Circuit Court of the United States for the words, it could not convert itself into a ware-Eastern District of New York, against the houseman by proving that it had, before the United States for compensation for services fire, tendered the goods to the connecting car rendered by the plaintiff as United States

rier, and that the latter neglected, although district attorney, for which he claimed com1363)without reasonable excuse, to take them *in pensation beyond the salary and emoluments

to its actual custody. Even if this were not attached to the said office in which suit
so, the suggestion that the railway company a judgment was rendered in his favor against
had become a warehouseman before the fire the government for the sum of $6,513.95.
occurred can be disposed of on the grounds Question as to plaintiff's right to extra com-
stated by the circuit court of appeals. pensation answered in the negative.
Speaking by Judge Wallace, that court said: The facts are stated in the opinion.
“There is no room for the contention that Mr. James E. Boyd, Assistant Attorney
the defendant had ceased to be a carrier and General, for the plaintiff in error.

Mr. Jesse Johnson, defendant in error, and all civil actions in which the United in proper person.

States are concerned, and, unless otherwise

instructed by the Secretary of the Treasury, (864) *Mr. Justice Harlan delivered the opinion to appear in behalf of the defendants in ali of the court:

suits or proceedings pending in his district In the circuit court of the United States against collectors, or other officers of the rev. for the eastern district of New York a judg enue, for any act done by them, or for the rement was rendered against the government covery of any money exacted by or paid to and in favor of the defendant in error, John- such officers and by them paid into the Treas. son, for the sum of $6,513.95. Of that ury.” amount $6,500 represented the value of legal "8 823. The following and no other comservices rendered for the United States by pensation shall be taxed and allowed to atJohnson while he held the office of district torneys, solicitors, and proctors in the courts attorney for that district, in proceedings in of the United States, to district attorneys, that court for the condemnation of certain clerks of the circuit and district courts, marlands for public purposes.

shals, commissioners, witnesses, jurors, and The case having been carried by writ of printers in the several states and territories, error to the circuit court of appeals, certain except in cases otherwise expressly provided questions of law arose as to which instruc- by law. But nothing herein shill be contions are desired from this court,—the construed to prohibit attorneys, solicitors, *and(366) trolling question being whether Johnson was proctors from charging to and receiving from entitled, for the services rendered, to any their clients, other than the government, compensation beyond the salary and emolu- such reasonable compensation for their sers. ments attached to his office.

ices, in addition to the taxable costs, as may The sections of the Revised Statutes (Title be in accordance with general usage in their 13, chap. 16) upon the construction of which respective states, or may be agreed upon bethe answers to the questions propounded tween the parties. more or less depend are the following: | “& 824. , . For examination by a dis

"$ 355. No public money shall be expend-trict attorney, before a judge or commissioned upon any site or land purchased by the er, of persons charged with crine, five dolUnited States for the purpose of erecting lars a day for the time necessarily employed. thereon any armory, arsenal, fort, fortifica- For each day of his necessary atiendance in tion navy-yard, custom-house, light-house, a court of the United States on the business or other public building, of any kind what of the United States, when the court is held ever, until the written opinion of the Attor- at the place of his abode, five dollars; and ney General shall be had in favor of the va- for his attendance when the court is held lidity of the title, nor until the consent of elsewhere, five dollars for each day of the the legislature of the state in which the land term. or site may be, to such purchase, has been | "8 825. There shall be taxed and paid to

given. The district attorneys of the United every district attorney two per centum upon (865]štates, upon the application of the Attorney all moneys collected or realized in any suit

General, shall furnish any assist:ince oi in- or proceeding arising under the revenue fo:mation in their power in relation to the laws, and conducted by him, in which the titles of the public property lying within United States is a party, which shall be in their respective districts. And the Secre- lieu of all costs and fees in such proceeding." taries of the Departments, upon the applica- "ę 827. When a district attorney appears tion of the Attorney General, shall procure by deriction of the Secretary or Solicitor of any additional evidence of title which may the Treasury, on behalf of any officer o the be deemed necessary and which may not be revenue in any suit against such officer, for in possession of the officers of the govern- any act done by him, or for the recovery of ment, and the expense of procuring it shall any money received by him and paid into the be paid out of the appropriations made for Treasury in the performance of his official the contingencies of the Departments re- duty, he shall receive such compensation as spectively.

may be certified to be proper by the comt in "§ 767. There shall be appointed in each | which the suit is brought, and approved by district, except in the middle district of Ala- the Secretary of the Treasury." bama, and the northern district of Georgia, “ 833. Every district attorney, clerk of and the western district of South Carolina, a district court, clerk of a circuit court, and a person learned in the law; to act as attor-marshal, shall, on the first days of January ney for the United States in such district." and July, in each year, or within thirty days

"§ 770. The district attorney for the thereafter, make to the Attorney General, in southern district of New York is entitled to such form as he may prescribe, a written rereceive quarterly for all his services a sala- turn for the half year ending on said days, ry at the rate of $6,000 a year. For extra respectively, of all the fees and emoluments services the district attorney for the dis- of his office, of every name and character, trict of California is cntitled to receive aand of all the necessary expenses of his ofsalary at the rate of $500 a year, and the ice including necessary clerk hire, together district attorneys for all other districts at with the vouchers for the payment of the the rate of $200 a year.

same for such last half year. He shall state "771. It shall be the duty of every dis- separately in such returns the fees and emolutrict attorney to prosecute in his district all ments received or payable under the bankdelinquents for crimes and offenses cogniza- rupt act; and erery marshal shall state sepble under the authority of the United States,' arately therein the fees and emoluments *re (367)

ceived or payable for services rendered by , strued to prevent the employment and pay. himself personally, those received or payable ment, by the Department of Justice, of disfor services rendered by each of his deputies, trict attorneys as now allowed by law for the naming him, and the proportion of such fees performance of services not covered by their and emoluments which, by the terms of his sulary or fees.service, each deputy is to receive. Said re- ! The facts to be considered in connection turns shall be verified by the oath of the of- with these statutory provisions are set forth ficer making them.

| in a statement accompanying the certificate "§ 834. The preceding section shall not of questions. They may be thus sumapply to the fees and compensation allowed | marized: to district attorneys by sections eight hun- By the fortification act of August 18th, dred and twenty-five and eight hundred and | 1830 (26 Stat. at L. 315, 316, chap. 797), aptwenty-seven. All other fees, charges, and propriations were made for gun and mortar emoluments to which a district attorney or a batteries, as follows: “For construction of marshal may be entitled by reason of the gun and mortar batteries for defense of Bosdischarge of the duties of his office, as now ton harbor, two hundred and thirty-five or hereafter prescribed by law, or in any thousand dollars; New York, seven hundred case in which the United States will be and twenty-six thousand dollars; San Franbound by the judgment rendered therein, cisco, two hundred and sixty thousand dol. whether prescribed by statute or allowed by lars." a court or any judge thereof, shall be in. The same act contained the following procluded in the semi-annual return required of vision: "For the procurement of land or said officers by the preceding section.

right pertaining thereto, needed for the site, "835. No district attorney shall be allocation, construction, or prosecution of lowed by the Attorney General to retain of works for fortifications and coast defenses, the fees and emoluments of his office which i five hundred thousand dollars, or so much he is required to include in his semi-annual thereof as may be necessary, and hereafter return, for his personal compensation, over the Secretary of War may cause proceedings and above the necessary expenses of his of- to be instituted in the name of the United fice including necessary clerk hire, to be au: States, in any court having jurisdiction of dited and allowed by the proper accounting such proceedings for the acquirement by ofticers of the Treasury Department, a sum condemnation of any land, or right pertain. exceeding six thousand dollars a year, or ing thereto, needed for the site, location, conexceeding that rate for any time less than a struction, or prosecution of works for foryear.”

tifications and coast defenses, such proceed"844. Every district attorney, clerk, and ings to be prosecuted in accordance *with the[369) marshal, shall at the time of making his laws relating to suits for the condemnation half-yearly return to the Attorney General, of property of the states wherein the propay into the Treasury, or deposit to the ceedings may be instituted: Provided, That credit of the Treasurer, as he may be di. when the owner of such land or rights perrected by the Attorney General, any surplus taining thereto shall fix a price for the same, of the fees and emoluments of his office, which in the opinion of the Secretary of War which said return shows to exist over and shall be reasonable, he may purchase the above the compensation and allowances au same at such price without further delay: thorized by law to be retained by him.” | Provided further, That the Secretary of War

"§ 1764. No allowance or compensation is hereby authorized to accept on behalf of shall be made to any officer or clerk, by rea- the United States donations of land or rights son of the discharge of duties which belong pertaining thereto required for the aboveto any other oflicer or clerk in the same or mentioned purposes: And provided further, any other Department; and no allowance or That nothing herein contained shall be concompensation shall be made for any extra strued to authorize an expenditure, or to inservices whatever, which any officer or clerk volve the government in any contracts for may be required to perform, unless express | the future payment of money, in excess of ly authorized by law.

the sums appropriated therefor.” 68] *^g 1765. No officer in any branch of the By the subsequent act of July 23d, 1892 (27

public service, or any other person whose Stat. at L. 257, 258, chap. 233), five hundred salary, pay, or emoluments are fixed by law thousand dollars, or so much thereof as was or regulations shall receive any additional necessary, was appropriated "for the propay, extra allowance, or compensation, in curement of land or right pertaining thereto, any form whatever, for the disbursement of needed for the site, location, construction, or public money, or for any other service or prosecution of work for fortifications and duty whatever, unless the same is authorized coast defenses." by law, and the appropriation therefor ex 1 In the year 1891, at the special written pressly states that it is for such additional request of the Secretary of War, Johnson, bepay, extra allowance, or compensation." ing then United States district attorney for

By section 3 of the act of June 20th, 1874 the eastern district of New York, was in(18 Stat. at L. 85,109, chap. 328), it was pro- structed by the Attorney General of the vided that "no civil officer of the government United States to institute proceedings on beshall hereafter receive any compensation or half of the government of the United States perquisites, directly or indirectly, from the for the condemnation for a mortar battery of Treasury or property of the United States certain lands on Staten Island, New York, beyond his salary or compensation allowed | adjacent to Fort Wadsworth in that district. by law: Provided, That this shall not be con- With such instructions the Attorney Gen.

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