
    SAMUEL G. HILLBORN v. THE UNITED STATES.
    [No. 16666.
    Decided November 14, 1892.]
    
    
      On the Proofs.
    
    This case relates to the fees of district attorneys, and to the right of the Government to recover hack an excess of fees paid in mistake of law. • .
    I. It is well settled that a counsel fee of $30 allowed by the judge before whom a case is tried under Revised Statutes, § 824, can not be reduced by the Attorney-General and the accounting officers.-
    H. A preliminary petition filed under Rule 8 stops the running of the statute of limitations, if it designates the claims with sufficient definiteness to lay a foundation for the action.
    H3. In cases where the jury fail to agree district attorneys are entitled to a docket fee of $20.
    IY. Where several criminal charges against the same person might have been joined in one indictment a district attorney can be paid but one bill of costs. (Revised Statutes, § 980.)
    Y. A district attorney is not entitled to a docket fee “in my suit or proceeding arising under the revenue laws.” (Revised Statutes, § 825.)
    VI. In an application for the removal of a defendant to another State under the Revised Statutes, § 1014, he is entitled only to an assimilated fee, under section 299, of $5 a day.
    VII. The Attorney-General and the accounting officers have not power to reduce the assimilated fees where the amount is fixed by statute.
    TUI. A judge has no power to make an allowance to a district attorney in eases tried before him if there is an assimilated fee for the service.
    
      IX.Where the Attorney-General directs a district attorney to appear on behalf of the Government in a suit in equity, he is entitled to a fee of $20.
    X.When the accounts of a district attorney have been approved by the proper court, and reduced by the Attorney-General and the accounting officers, and the balance allowed has been paid, it can not be recovered back in part on the ground that it embraced fees not authorized by law.
    XI.When money is paid after careful consideration by the proper officers of the Government upon settlements made by the accounting officers, it can not be recovered back because paid in mistake of law.
    
      The Reporters’ statement of the case:
    The following are the facts of this case as found by the court:
    I. The claimant was a United States attorney in the State of California from February 1, 1883, to November 30,1886.
    II. (1) More than six years before filing the preliminary petition seventeen indictments for crimes' were tried by him before juries and convictions had. In addition to the attorney’s fees, otherwise provided for, there was allowed to him by the court prior to September 30, 1883, under Rev. Stat., sec. 824, a counsel fee, in proportion to the importance and difficulty of the cause, of $30 in each case, amounting to $510. The Attorney-General and the accounting officers reduced the amount in four cases to $15 each, and in thirteen cases to $10, and the claimant was paid $190 and no more.
    (2) December 31,1883, in a like case, a $30 counsel fee was allowed him by the court, which was similarly reduced to $15, which was so paid to him.
    III. In like manner, between June 30, 1884, and April 3, 1885 (within six years before filing the first amended petition), the claimant tried before juries three indictments for crimes, in which convictions were had; and there was allowed to him by the court (under said section) a counsel fee, in proportion to the importance and difficulty of the cause, of $30 in each case, amounting to $90. The Attorney-General and the accounting officers reduced the amount in each case to $10, and he was paid $30 and no more.
    IV. One hundred and ninety-five dollars are claimed in cases in which the action of the court and of the accounting officers is shown by the following table, which correctly states the form of action, parties, taxation, and grounds alleged for dis-allowance in each case:
    
      
    
    
      a There were two cases v. Frank Collins, the first for “ disobedience of lawful commands, American steamer Iroquois,” etc. In this case a nolle pros, was entered and docket fee of $5 charged. The charge in the second case is ‘ ‘ neglecting to obey comm ands, ’ ’ etc., upon which a conviction was had. The attorney was allowed a docket fee of $20 and a special counsel fee of $30.
    
      b The same report shows two cases v. Coodell, the charge being the same in each case, i. e., “for inflicting cruel and unusual punishment on certain séamen,” etc. In the first case a conviction was had, a docket fee of $20 and special counsel fee of $30 allowed. In the second case the defendant was acquitted and a docket feo of $20 charged.
    
      c There were also two oases v. F. A. Dow, the charge in each case being the same as in cases v. Coodell. In the first case defendant was tried without jury and convicted, and a docket fee of $10 allowed. The seoond trial resulted in an acquittal.
    It is the usual practice of this [Pixst Comptroller’s] office to make suspensions in such cases for information as to why not joined under sections 980 and 1024, Revised Statutes.
    
      d The services of the district attorney in the case v. Ceorge A. Johnson consisted in making argument upon application for removal of defendant to Arizona where he had been indicted. The court made an order directing the surrender of defendant to the TFnited States marshal for the district of Arizona. The charge of $10, docket fee, was disallowed for the reason that it is not a case in court.
    
      e In case of Salvadaro La Parura, alias Joseph Almont and Frank Paris, were defendants. Indictment charged with “having in possession, passing, etc., counterfeit United States notes,” etc. The case was tried twice, April 17 and 27, 1886, the jury having disagreed each time. On the last-named date the attorney entered a “nolle ” and the case went off the docket.
    
      f Case of D. Curtin. Charge: “Disobeying the lawful commands of the American steamer Mariposa” etc. Case consolidated with Kos. 2271, 2272, 2278, 2274,2275, and 2276, by order,of court. Trial proceeded with on June 3d; lasted four days. Jury discharged, not being able to agree. Docket fee of $20 charged.
    
      g Case of Patrick O'Keefe. Charged with “ having in possession counterfeit coin,” etc. Tried June 11, 1886; jury discharged, not being able to agree.
    
      h Oase'ü. Miekel. In this case the verdict was for defendant, consequently nothing realized, and no commissions could be allowed.
    V. (1) Tbe claimant appeared and resisted tbe proceedings in cases prosecuted in tbe proper court of tbe United States, wherein writs of babeas corpus bad been issued on behalf of subjects of the Emperor of China to masters of certain vessels arriving at the port of San Francisco, by whom persons were detained under orders of the collector of said port acting under color of the authority of the act of Congress, of May 6,1882, ch. 120 (1 Supp. Eev. Stat., 2d ed., p. 342, and 22 Stat. L., 58), and act of July 5, 1884, ch. 220 (1 Supp. Eev. Stat., 2d ed., p. 458). Judgment was rendered without a jury in each case.
    (2) For the services of claimant the judge, upon approving Ms accounts under the act of February 22, 1875 (1 Supp. Eev. Stat., 2d ed., p. 65), taxed and allowed him an assimilative fee of $10 in each case (except in eight cases), in. the following form according to section 299 of the Eevised Statutes:
    
      u I do further certify that the sum of $10 in each of said cases is a just and reasonable compensation and proper allowance to said S. G. Hillborn, esq., for the services performed therein; that the fee of $10 hereby allowed has been assimilated to such fee as is prescribed by section 824 of the Eevised Statutes for similar services in cases in which the United States is a party and where judgment is rendered without a jury.”
    (3) The amount taxed and allowed by the court and the deductions by the Attorney-General and accounting officers appear in the following table:
    Services from date to date. Dato of taxation and of approval of accounts. Amount taxed. Amount alloved and paid. Amount deducted by Attorney-General and accounting officers.
    1. Pel). 19,1883, to Mar. 31,1884.. April 1,1884 $3,810 $1,500 $2,330
    2. April 1 to June 30,1884 . 3. duly 1 to Sopt. 30,1884 . Nov. 39,1884 Nov. 19,3884 3,720 100 977 2,643
    4. Oct. 1,3884, to March 31,1885. Hay 7,1885 3,370 1,000 2,370
    5. Mayl’to Jud©80, 3885 . Oct'. 21,1885 910 300 630
    6. July 1 to Sept. 30,1885 . Oot. 21,3885 1,695 530 1,365
    7. Oct. 1 to Dec. 31,1885 . Jan. 23,1886 1,070 218 852
    14,575 4,625 9,950
    Of the cases in item (1) of the table in paragraph, (3) four cases were tried and final judgments rendered during the period between February 19, 1883, and October 15,1883; 372 cases were tried and final judgments rendered during the period between October 16, 1883, and March 19,1884; and the remaining five cases were tried and final judgments rendered during the period between March 20,1884, and March 31,1884. Bight cases (included in items (2) and (3) of said table) were test cases contested by the claimant, and the judge taxed and allowed him $2,000 for his services in these cases. The Attorney-General reduced the amount of the whole account by the sum of $9,950, as, in his opinion, so much, in excess of reasonable compensation for the services; the accounting officers adopted his reduction and claimant was paid the balance only.
    VI. The claimant was directed by the Attorney-General upon the request of the Secretary of W ar, December 1,1885, to represent the interests of the United States in a suit by the United States against Joseph Bound and some thirty other defendants in the Circuit Court of the United States for the district of California, to restrain the diversion of the Sacramento Biver, Said suit was filed on tlie 5th of January, 1886, and final decree was entered on the 1st of March, 1886. The compensation of claimant for services was fixed on the 15th of May, 1886, by the circuit judge, at $500, as reasonable and jnoper. The Attorney-General approved the same for $200, and the accounting officers allowed $20, which has been paid, and no more.
    VII. (1) In association with his predecessor in office the claimant defended an action of trespass brought by parties against the United States marshal of the northern district of California for ejecting them from a Government reservation without process of law. For this service the Circuit Court approved a joint account for $800 as just and reasonable, of which $400 was approved for the claimant, and $300 of the amount so approved was paid to him, on the approval of the Attorney-General, out of the appropriation for fees of district attorneys for the fiscal years 1883 and 1885, to wit, $250 as earned in calendar year 1883 and $50 as earned in calendar year 1885, upon a separate account settled by the accounting officers March 14, 1885.
    (2) Claimant appeared in the United States court in behalf of the United States surveyor-general of California in a mandamus suit instituted to compel the latter to mate a survey, and defended the suit by direction of the Attorney-General upon the recommendation o*f the Secretary of the Interior.
    For this service he rendered an account for $1,000, which the Circuit Court taxed and approved as just and reasonable. Of this sum, $650 was disallowed by the Attorney-General, and. tlie balance, $350, was approved by Mm and paid to claimant out of tlie appropriation for fees of district attorneys, for tlie fiscal year 1884, upon a separate account settled by tlie accounting officers February 27,1884.
    (3) Claimant’s predecessor in office, by direction of tbe At-torn ey-Cen eral, at tbe request of the Secretary of the Interim-, instituted four suits in the United States Circuit Court to set aside patents for land. After claimant became district attorney he prosecuted the suits until they were dismissed on demurrer July 30,1883 (United States v. White, 9 Sawyer, C. Cls. B., 125). For this service claimant rendered an account for $500, which was approved by the circuit judge as reasonable and proper compensation, of which sum $400 was paid on tlie recommendation of the Attorney-General out of the appropriation for fees of district attorneys for the fiscal year 1884 upon a separate account settled by the accounting officers December 7, 1883.
    
      Mr. William B. King for the claimant.
    
      Mr. Felix Brmnigan (with whom was Mr. Assistant Attorney-General Cotton) for the defendants.
    
      
       The opinion was delivered on the 14th of November, 1892, but was not filed in time for the Reporters to place the case in chronological order.
    
   BichardsoN, Oh. J.,

delivered the opinion of the court:

Several questions of law arise in this case and we shall consider them in the numerical order of the findings.

The claims in the second and third findings are for counsel fees of $30 in each case, allowed by the judge before whom the cases were tried, under Bevised Statutes, section 824, and which were reduced by the Attorney-General and the accounting officers. The claimant denies the right of those officers to make the reduction, and sues for the amount deducted.

This raises the question decided in favor of the claimant in Waters’s Case (21 C. Cls. R., 30), and as that case was affirmed on appeal by the Supreme Court (133 U. S. R., 208) it is unnecessary to considerthe subject further.

To the claims in the second finding the defendants further plead the statute of limitations (Rev. Stat., sec. 1069.)

A rule of the court provides as follows:

“8. When the claimant can not state his ease with the requisite particularity without an examination of papers in one of the Executive Departments, and has been unable to obtain a sufficient examination of such papers on application, be may file a petition stating bis claim as far as is in bis power, and specifying as definitely as be can tbe papers be requires in order to enable bim to state bis claim.
“ Tbe court will thereupon call upon tbe proper, Department for sueb information or papers as it may deem necessary, and when tbe same are furnished tbe petition may be amended, ■and tbe amended petition shall be printed and filed, and may take tbe place of tbe original petition.”

October 16, 1889, tbe claimant filed tbe following preliminary petition:

Tbe claimant, Samuel G-. Hillborn, respectfully represents:
“That be was duly appointed and commissioned United . States district attorney for tbe district of California and served in such office from, on, or about tbe first day of January, eighteen hundred and eigbty-tbree, until on or about tbe fifteenth day of November, eighteen hundred and eighty-six.
“ That during said period be faithfully performed tbe duties of said office and was also employed and retained by tbe Attorney-General of tbe United States for many other duties outside of bis official duties as district attorney aforesaid.
“ That from time to time, as required by law, be prepared bis accounts for services rendered tbe United States.
‘‘That the same was fully approved by tbe United States district judge to whom tbe same were submitted and were forwarded to tbe United States Treasury Department.
l( That numerous items of said accounts were disallowed by tbe Treasury Department upon various grounds not warranted by law.
u That petitioner can not now state with particularity tbe items so disallowed, but avers that among them were many items for services rendered by direction of tbe Attorney-General in connection with various habeas corpus cases of China-men desiring to enter this country.
That tbe total of tbe items so disallowed is in tbe vicinity of seven thousand dollars more or less.
“ That on account of tbe papers upon which this claim is based being filed in tbe Treasury Department, tbe petitioner prays leave to file this prebminary petition under Rule 8, and asks that tbe motion for call upon tbe Treasury Department, filed herewith, be allowed, and thereafter be will file a precise petition setting forth tbe exact amount which be claims.”

At tbe same time be made application for a call on tbe Treasury Department for all accounts filed by tbe claimant while United States district attorney for tbe district of California,” etc. In reply voluminous documents were returned to tbe court January 3,1890. On March. 20.1890, the claimant’s first amended petition was filed and contained the items set out in the third finding, all of which accrued more than six years before filing that amended petition, but not more than six years before filing the preliminary petition.

We are of opinion that the claimant saved his rights and stopped the running of the statute of limitations by filing his preliminary petition in accordance with the rule of court as to the item which accrued within six years before that date. The evidence, all documentary, was in possession of the defendants, and the petition designated the claims with sufficient definiteness to lay the foundation tor this action. Within a reasonable time after the call was answered by the Treasury Department, the claimant, as the rule permits, filed an amended petition which relates back to the date of filing the preliminary petition. The claims, except those in the first paragraph which accrued more than six years before filing the preliminary petition, set out in findings ii and m, must be allowed.

As to items of claim set out in finding iv, they may be grouped in three classes.

Numbers 4,5, 9,10, and 11 are cases which were tried by the claimant and the jury failed to agree. In these cases we are of opinion that the claimant is entitled to a docket fee of $20 in each case, under the first clause of Eevised Statutes, section 824, which allows an attorney “on a trial before a jury, in civil or criminal causes, or before referees, or on a final hearing in equity or admiralty, a docket fee of $20.” A conviction is not necessary to the allowance of this fee. The district attorney becomes entitled to it when he tries the case and submits the same to the jury. If a conviction follows the indictment and trial he may be allowed under the last clause of the same section, “in addition to the attorney’s fees herein provided, a counsel fee, in proportion to the importance and difficulty of the cause, not exceeding $30.” It is the additional counsel fee and not the docket fee that depends upon conviction.

Number 6 was a case tried by the claimant against several defendants, of whom one was acquitted and the case was not finally disposed of as to the others. For the reasons just stated we hold that the docket fee was earned and that the claimant is entitled to payment.

Numbers 1, 2, and 3 were cases in which more than one indictment was found against tlie same person for charges -which might have been joined under the provisions of Eevised Statutes, section 1024. He has been paid one bill of cost' for each two cases which should have been joined and the following section of the Eevised Statutes prohibits his being paid any more:

u Sec. 980. When a district attorney prosecutes two or more indictments, suits, or proceedings which should be joined, he shall be paid but one bill of costs for all of them.”

Number 7 was a civil suit for tax on cigars which resulted in a verdict for defendant. This charge of $20, docket fee, can not be allowed. The statute makes the district attorney’s compensation for trying such a case dependent upon the amount of moneys collected or realized “in lieu of all costs and fees,” as appears by the following section of the Eevised Statutes:

“ Sec. 825. There shall be taxed and paid to every district attorney two per centum upon all moneys collected or realized in any suit or proceeding arising under the revenue laws and conducted by him, in which the United States is a party, which shall be in lieu of all costs and fees in such proceeding.”

Number 8 was a case of an application for the removal of a defendant to Arizona where he was under indictment, in which the claimant appeared and made an argument for granting the application, and the judge ordered the .surrender of the defendant. These proceedings took place under the provisions of the Eevised Statutes, section 1014, which enacts that they shall be “ at the expense of the United States.” If the district attorney appears in such case, the most that he is entitled to charge is an assimilated fee under Eevised Statutes, section 299, of $5 a day for each day of his necessary attendance allowed by Eevised Statutes, section 824. How many days he was in attendance does not appear, and one day only can therefore be allowed.

The next items of claim are set out in finding v, and the deductions by the accounting officers from claimant’s accounts amount to $9,950. In each of the cases therein charged for the claimant is entitled to an assimilated fee of $10, under the provisions of the Eevised Statutes, section 299, with reference to the taxable fees in similar cases under Eevised Statutes, section 824, where that fee is allowed in cases at law when judgment is rendered without a jury.

Iii eight eases which were tried the judge made an allowance to the claimant of $2,000, and the same is charged in the accounts set out in the table.

The Attorney-General reduced the whole charge of $14,575 by $9,950, as, in his opinion, so much in excess of reasonable compensation for the services, and the accounting officers, following the action of the Attorney-General, made the same deduction. This they had no power to do as to the assimilated fees. The fees of the district attorney are fixed by statute and are not subject to reduction by other officers.

On the other hand, the judge had no power to make an allowance of more than the assimilated fees in the eight cases in which he allowed $2,000.

The claimant’s accounts must be corrected accordingly.

The sixth finding presents a case where the Attorney-General directed the district attorney to prosecute an equity suit on behalf of the United States in the United States Circuit Court. In such case it was the official duty of the district attorney to represent the interests of the United States in the suitj and for the performance of that duty the fee bill allows a fee of $20 and nothing more. That fee has been paid to the claimant. (Smith’s Case, 26 C. Cls. R., 568.)

This brings us to the counterclaims in the seventh finding.

There are three cases in which the judge before whom the cases were prosecuted by the claimant made certain allowances beyond the taxable costs. The Attorney-General reduced the same and the accounting officers approved the reduced sums or made still further reductions, and the claimant was paid the final reduced amounts. The accounts for these charges were all settled and paid separately in the years 1883, 1884, and 1885, and are in no way connected with the claims set up in this case.

On the part of the defendants it is contended that, as matter of law, the claimant had no right to the compensation allowed beyondcertain taxable fees and that thejudge, the Attorney-General, aud the accounting officers were all wrong in passing the accounts and in authorizing the payments, whereby the claimant is liable to repay the amount which he has received in excess of his legal fees.

That money paid in mistake of law as well as of fact may sometimes be recovered back in an action for money had and received or on a plea of counterclaim by tbe United Stares is no doubt true (Ellsworth’s Case, 14 C. Cls. R., 394, 395, affirmed on appeal, 101 U. S. R., 170; McElrath’s Case, 12 C. Cls. R., 201, 312, affirmed on appeal, 102 U. S. R., 426).

Tbe action of assumpsit for money bad and received is said to be an “ equitable remedy that bes in favor of one person against another wben that other person has received money either from the plaintiff himself or third person, under such circumstances that in equity and good conscience he ought not to retain the same, and which, ex wguo et bono, belongs to the plaintiff.” (4 Waite’s Actions and Defenses, 469.)

In the present case the claimant performed actual services for which he considered himself entitled by law to compensation; a United States judge was of the same opinion, and made allowances accordingly; the Attorney-General of the United States conceded his right to compensation but reduced the allowances made by the judge, and the accounting officers passed the accounts with further deductions in some cases, and as finaby reduced they were paid.

In our opinion, when money is paid, after careful consideration of the law and facts by such high officials, and upon settlements made by the accounting officers, it can not be held that the district attorney received the money under such circumstances that in equity and good conscience he ought not to retain it, although it may appear that all those public officers were mistaken in their interpretation of the statutes and that he was not in law entitled to the compensation.

Attorney-General Cushing, in an opinion given to the Secretary of the Interior in 1854 upon the accounts of a coroner of the District of Columbia, settled and paid upon an erroneous construction of the law, thus advised in relation to the reopening of the same:

“ That construction was manifestly against law. I do not recommend that the coroner be cabed upon to refund the money he has received. The Government has voluntarily paid it in its own wrong, and, perhaps, ought to submit to the loss. 1 am accustomed to advise acquiescence in what is done as done. (6 Op., 568.)
“Accounts have sometimes been opened on the application of a party for the correction of a manifest error of law committed to his prejudice. But if one party insists upon having the accounts open to readjust them, in view of correcting errors committed to bis prejudice, it would be right and the duty of the accounting officers to correct at the same time any error committed to the prejudice of the other party. The effect of this will be that if the accounts are reopened at the instance of the coroner the readjustment must be complete and legal in all its parts, and he may be called upon to account for the money which he has received unlawfully heretofore by the mistake of the Government.” (6 Op., 576.)

It was on this latter ground that in the case of McElrath a judgment was rendered against him for money paid in mistake of law. He had been an officer of the Navy, and was dismissed by an Executive order which was subsequently revoked, and the revocation was held to be illegal. In the interval of some seven years between the two orders he had performed no service, and he claimed full pay as an officer de jure of about $12,000. The accounting officers, on some theory of the law, allowed him half pay, which he accepted under protest and brought suit for the difference. The court held that he was not an officer of the Navy during this time and should not have been paid as such. As he had himself reopened the settlement by bringing suit he had invited a full readjustment of the account and judgment was given against him on the counterclaim for what he had received. (McElrath's Case, 12 C. Cls. R., 201, 312; 102 U. S. R., 426.)

In other cases it has been held that where payments have been made upon settlements of the accounting officers for service actually rendered or for money actually paid, though not warranted by law, themoneycouldnotberecovered back if ithad been • received in good faith and the recipients acquiesced in the settlements and did not seek to reopen them. ' (Miller’s Case, 19 C. Cls. R., 354; Palen's Case, 19 C. Cls. R., 394; Hartson's Case, 21 C. Cls. R., 451.)

The claimant is not seeking to reopen his settlements. In his second amended petition, filed by leave of court, he omits the claims embraced in those accounts and thus acquiesces therein.

We hold that the settlements are equally binding upon the defendants, and that money paid thereon can not be recovered back on the plea of counterclaim.

Upon the whole case the judgment of the court is that the counterclaims must be dismissed aud that claimant is entitled to recover on—

Finding IX (par. 2). $15

Finding III. 60

Finding IV.■-. 125

Finding V. 8,030

Total.8,230

For that sum judgment will be rendered for claimant unless the maximum of $6,000 fixed by Bevised Statutes, section 835, would be exceeded in any one year, in which case the judgment must be so much less. On that point no evidence has been presented, but as it is understood that the claimant’s emolument returns will show that to be the case, judgment will be suspended until the accounts can be adjusted at the Treasury in conformity with this opinion.  