
    JOHN J. ALLEN v. THE UNITED STATES.
    [No. 16870.
    Decided June 8, 1891.]
    
      On the Proofs.
    
    A chief supervisor of elections prepares a record in the nature of an index, condensed from 1,900 books made up by his deputies. It oontains 58,399 folios. The accounting officers deem the number of folios excessive.
    I.The right of a chief supervisor of elections to compensation for making a record of voters depends upon the Revised Statutes, § 2031, Which allows “ for entering and indexing the records of his office, 15 cents per folio.”
    II.Officers intrusted with the execution of a law are entitled to exercise their discretion in the manner in which records shall be entered • and indexed.
    III. In the absence of bad faith, the court can not hold that a record and index of voters compiled by a chief supervisor of elections is excessive in length.
    IV. Whether a public officer has kept his records or made his reports unnecessarily long where his compensation is by the folio is always a question of fact.
    
      The Reporters’ statement of the case:
    The following are the facts of this case as found by the court:
    I. The claimant, John J. Allen, has been a commissioner of the Circuit Court of the United States and chief supervisor of election for the eastern district of New York since the year 1874, duly qualified, and is still acting.
    II. In connection with the Congressional election of 1886 he performed the duties as chief supervisor of election under the provisions of title 26 of the Devised Statutes of the United States known as “ The Elective Franchise,” in addition to the duties as a circuit court commissioner.
    III. On or about the 6th day of November, 1889, the claimant made and duly verified an account for certain services and disbursements as chief supervisor of election iu connection with the Congressional election of 1886, to wit, for entering and indexing the records of persons registered and of voters, being the records of the chief supervisor’s office, 58,399 folios, at 15 cents per folio, amounting to $8,759.85, and for disbursements amounting to $163; said account was presented to the accounting officers of the United States Treasury Department for payment, and payment of said account was refused. Said account has been duly approved by the United States District Courtfor said district and the order of approval entered of record. Said approval was in the presence of the district attorney of the United States for said district.
    IY. No part of the work done, disbursements made, or services referred to and charged in the aforesaid account has been included in, covered by, or embraced in any account made or presented to the accounting officers of the Treasury, or any other Department or office of the United States other than the account sued upon herein, and no payment has been made for any item charged therein. All of said service was performed within six years before the commencement of this suit.
    Y. The nature of the services described in the account in suit was the entering and indexing the records of persons who registered for the purpose of rmting at the election for Representative in Congress held in November, 1886, in the cities of Brooklyn and Long Island City, in said eastern district of New York. This index record contains the particulars relative to each voter, as shown by finding ix.
    YI. The disbursements charged are for postage stamps on official matter relating to the business of the office, $12, and for large index volumes for recording and indexing the records of the office, $151.
    YII. From 1874 to the election of 1886 claimant rendered account for services at each Congressional election like those named in the petition herein, and payment was allowed for such services by the accounting officers of the Treasury.
    YIII. The services have been performed and disbursement made, and were necessary for the proper and efficient discharge of the duties required by law of the chief supervisor of election. The matter contained in finding ix was returned to claimant by the subordinate supervisors, and was contained in nineteen hundred books.
    
      
      
    
    
      
      
    
    
      
      Mr. Charles C. Lancaster for the claimant.
    
      Mr. James H. Nixon (with whom was Mr. Assistant Attorney-General Cotton) for the defendants:
    1. It is insisted that this account was never properly presented to the Treasury Department for approval and payment, and there was no authority to pay it in the form presented. The act of February 22, 1875 (18 Stat. L., 333), requires that before accounts therein specified shall be allowed by any officer of the Treasury they shall be proved in open court. The accounts of chief supervisors also, it has been held in the Conrad, Case (15 Fed. Reporter, 641), must be so proved. It is not pretended that this account was proved in open court before its presentation to the officers of the Treasury Department. It was subsequently, on June 27, 1890, proved according to law in open court; but not for the purpose of its presentation at the Treasury Department for payment, but for the purpose of bringing suit in this court.
    That was not the intention or meaning of the act of Congress. Has the account ever been before the officers of the Treasury Department in proper form, and can an action be maintained in this court for fees unless the account has in proper form been presented to the Treasury Department and payment refused are, we think, questions of importance. Is' such an approval by the court subsequent to the presentation of the account at the Treasury Department, and for the purpose of bringing the case before this court, 'such an approval as will authorize the Court of Claims to give judgment on the authority of that approval, according to the doctrine of the Jones Case in 134 U. S. R., page 483 %
    
    
      2. The item, to wit, for entering and indexing the records of persons registered and of voters, 58,399 folios, at 15 cents per folio, amounting to $8,759.85, may well be questioned. There is no direct authority in the statute for any such charge. It has been allowed in some cases by Comptrollers of the Treasury previous to the administration of that office by Judge Durham; but a custom of the Department can not alter the law, and the custom has not been continuous. It ceased in 1885. The authority for making this charge, if any exists at all, is to be found only in sections 2026 and 2031 of the Revised Statutes.
    
      In the first place, the chief supervisors are allowed to make this call on the field supervisors ouly “ when necessary.” We insist that it is the duty of chief supervisors to affirmatively show the necessity of making this call upon the field supervisors, thus enormously increasing the expenses of the election. So far as the chief supervisor is concerned, it all happens and is all done after the election has been held and the result declared. No good can be accomplished by incurring this further expense.
    The lists are on file in the office, and can be referred to in subsequent elections if necessary, without being transcribed into books and indexed. There seems to be no necessity for it. It is only a method of drawing immense sums from the Treasury in the way of fees, and Comptrollers Durham and Matthews deserve well for their attempts to stop this great imposition.
    We desire to call the court’s special attention to the charge as it appears on page 1 of the petition and in the third request lor findings in the brief of claimant’s counsel, which is as follows : “For entering and indexing the records of persons registered and of voters, being records of the chief supervisor’s office,” 58,399 folios, at 15 cents per folio,” etc. This claim, then is for entering and indexing the records of persons. The additional words, “ being records of the chief supervisor’s office,” js merely the statement of the chief supervisor or his counsel, which we can not assent to.
    The only entering and indexing of the many books or lists sent up that would be at all necessary or valuable, or that could have been contemplated by Congress, would be the entering in an index book of the list itself, not of all it contains. That is, a book containing the number of the list itself, from what district sent up, by what field supervisor made out, and when and where filed in the chief supervisor’s office. This would be entering and indexing the “ lists of persons who may register and vote.” If the list does in fact become a record of the chief supervisor’s office when sent up by the field supervisor, then it (the list) may be entered and indexed in a book kept for that purpose, but not transcribed in full into other books, as seems to have been done in this case. We think this is the only rational interpretation of the act of Congress, even when we admit, for the sake of argument, that these lists of the field supervisors are “records of his (the chief supervisor’s) office.”
    But we do not, as we have before said,think that these lists can be properly termed records of the chief supervisor’s office; and, further, that for every duty in respect to these lists which it is necessary for him to perform the law provides pay, and he has been paid in this case.
    But if it is asked what records are to be recorded and indexed for which 15 cents a folio may be'charged, then we say the claimant’s own explanation of item 15 in his account furnishes a very good answer. To enter and index the records enumerated there is the duty no doubt contemplated by the act for which the charge may be made. The Treasury Department so interpreted the act under this and the preceding administration. The records enumerated in explanation of item 15 were not copied in full in the books, but merely entered and indexed. Let these lists be entered and indexed the same way, if at all, which would involve but small expense, and is all that the act requires.
    The courts, so far as we have been able to discover, have never held directly that such an item is allowable under the statute.
    There is another reason why judgment for such enormous bills ought not to be allowed without more proof of their legality than has been furnished in this case. The claimant, in answer to question 5, says: “ This index record contains the particulars relative to each voter, showing his qualification as a voter.” There is no proof or information of how many words are set opposite each voter’s name showing these particulars and qualifications, and it is submitted that it is necessary to show such facts before the court can determine whether or not the description and qualification of the voter is within the law. In this case it is incumbent upon the claimant to show by affirmative and sufficient proof that his enormous bill is for entering and indexing not an immense mass of superfluous description of voters, but only such description, of voters as the laws of the State where the registry is made requires. In the absence of such proof we insist that he is not entitled to judgment.
    3. We insist, moreover, that this claimant is not entitled to any further pay. On page 8 of the record will be found a bill rendered by the claimant, which has been paid and receipted for in full. Item 15 of said bill is for “ entering and indexing records of the office of the chief supervisor, 4,834 folios at 15 cents, $725.10.” This was for services at this same election in 1886. On page 9 of the record appears an attempted explanation of item 15, but we think the alleged explanation supports our contention that this present claim should not be paid.
   Weldon, J.,

delivered the opinion of the court:

From the year 1874 to the commencement of this suit the claimant was a commissioner of the Circuit Court of the United States for the eastern district of New York, and chief supervisor of said district, under the provisions of title No. 26, Eevised Statutes, entitled “ Elective Franchise.”

As such supervisor, he performed certain duties and made certain disbursements for the expenses of his office, the nature and character of which are shown by the findings.

The petition alleges the services to have been “ for entering and indexing the records of persons registered and of voters, being records of the chief supervisor’s office, 58,399 folios, at 15 cents per folio, amounting to the sum of $8,759.85, and disbursements amounting to the sum of $163.” No contention is made against the allowance of the disbursements, and the only controversy in the case is as to the legality of the service performed and the consequent right of recovery.

The findings establish the performance of the services, and their exact character is set forth in finding ix.

The defence insists that the statutes under which the services were performed do not contemplate such a record as was made by the claimant, and that for the unnecessary accumulation of matter there can be no recovery against the defendants.

Sections 2026 and 2031 embrace the provisions of law regulating the duties and prescribing the fees of chief supervisors, and are as follows:

Section 2026. The chief supervisor shall prepare and furnish all necessary books, forms, blanks, and instructions for the use and direction of the supervisors of election in the several cities and towns in their respective districts; he shall receive the applications of all parties for appointment to such positions,’ upon the opening, as contemplated in section two thousand and twelve, of the circuit court for the judicial circuit in which the commissioner so designated acts, he shall present such applications to the judge thereof, and furnish information to him in respect to the appointment by the court of such supervisors of election; he shall require of the supervisors of election, when necessary, lists of the persons who may register and vote, or either, in their respective election districts or voting precincts, and cause the names of those upon any such list whose right to register or vote is honestly doubted to be verified by proper inquiry and examination at the respective places assigned by them as their residences; and he shall receive, preserve, and file all oaths of office of supervisors of election, and of all special deputy marshals appointed under the provisions of this title, and all certificates, returns, reports, and records of every kind and nature contemplated or made requisite by the provisions hereof, save where otherwise herein specially directed.”
“ Section 2031. There shall be allowed and paid to the chief supervisor, for his service as such officer, the following compensation, apart from and in excess of all fees allowed for the performance of any duty as circuit court commissioner: For filing and caring for every return, report, record, document, or other paper required to be filed by him under any of the preceding provisions, ten cents; for affixing a seal to any paper, record, report, or instrument, twenty cents; for entering and indexing the records of his office, fifteen cents per folio; and for arranging and transmitting to Congress, as provided for in section two thousand and twenty, any report, statement, record, return, or examination, for each folio, fifteen cents; and for any copy thereof, or of any paper on file, a like sum.” * * *

Under the authority vested in claimant as chief supervisor by section 2026, he required the supervisors of election in his district to send “ a list of the persons who may register or vote,” or either, in their respective election districts; and the returns made by the supervisors of election are the basis of the record made in claimant’s office, as shown in finding IX.

The purpose of the legislative policy embraced in the title “ Elective Franchise ” was to secure a fair and honest expression of the legal voters in all elections held under and by virtue of the Constitution and laws of the United States; and to that end it was intended that, while not interfering with the legal right of a person entitled to vote, there should be established an efficient system against the perpetration of any fraud upon the legality and purity of Federal elections.

It must be conceded that the claimant had a right, under section 202(5, to call upon his subordinates to transmit to his office the lists which constitute the original of the record for the making of which he seeks compensation in this proceeding.

Under his call nineteen hundred books were returned to his office, and in order to reduce them to more convenient form he made a record of them, as shown by the findings. It will be seen that the record of the thirteen persons embraced in the finding ranges in the number of the lists from 101 to 099.

The liability of the defendants depends upon the construction of that part of section 2031 which provides “for entering and indexing the records of his office, fifteen cents per folio."

When the books or lists of the subordinate supervisors were returned to the chief supervisor they became the basis of a record in his office, and with them he had a right to deal under said sections.

This court has held in a number of cases that commissioners, clerks, marshals, and supervisors have a right to whatever fees the law prescribes for any and every act, which may be done in their official capacity, without reference to the necessity of the service. Officers are not permitted to multiply fees, but are authorized to do in extent whatever is necessary in the performance of their official duty.

Iu the case of Dennison v. The United States, (25 C. Cls. R., 304), among the many items contained in said claim is one for the same kind of service, to wit, subitem No. 24, “Entering and indexing the record of names of persons who were registered and voted for members of Congress in the several cities, 29,609 folios, at 15 cents each.”

In the decision of that case this court allowed said item as a legal and proper charge for official service. It is true that the record of the voter was less elaborate than the record in this case, but the principle of the right of the chief supervisor to make a record in his office of the return of the subordinate supervisors is recognized by the judgment and opinion in that case. It may be that some of the information as to the voter might have been omitted consistent with .the object and purpose of the statute; but there is no suspicion arising from the evidence in this case that the record was made unnecessarily prolix for the purpose of accumulating fees.

It is difficult to understand how a record can be entered and indexed without spreading it at large upon some book , of the office, and the fact that the services are to be paid for by the folio is an indication of substantial clerical work.

The findings show that from 1874 to the election of 1886 the claimant had performed like service, and had been paid by the Department.

While the doctrine of estoppel might not apply in this case as it did in the Hartson Case (25 C. Cls. R., 451), the construction of a statute by the officers of a Department intrusted with its execution and application, and upon the faith of which emp'loyés and officers of the Government have acted, is entitled to great weight and consideration when such statute becomes the subject of judicial construction:

“The construction given to a statute by those charged with the duty of executing it is always entitled to the most respectful consideration, and ought not to be overruled without cogent reasons. (Edwards v. Darby, 12 Wheat., 210; United States v. The State Bank of North Carolina, 6 Pet., 29; United States v. MacDaniel, 7 id., 1.) The officers concerned are usually able men and masters of the subject. Not unfrequently they are the draftsmen of the laws they are afterwards called upon to interpret. (95 U. S. R., 763.)
“The same principle was decided in this court in Hahn's Case (14 C. Cls. R., 305) and affirmed by the Supreme Court (107 U. S. R., 402). Also in Alexander's Case (12 Wall., 177, and 7 C. Cls. R., 205); Wright's Case (15 C. Cls. R., 87); Brown’s Case (18 id., 537), affirmed by the Supreme Court (113 U. S. R., 568); and Harrison's Case (20 C. Cls. R., 122; 21 C. Cls. R., 16).

It is almost impossible for the court to determine by an inspection of the record made by the claimant, and for which he charges, what is really material and necessary to be entered and indexed. While there are twenty-seven columns devoted to the identity of each voter, there are less than one-half folio to each person. The officers intrusted with the execution of the law must be given some discretion in what they will embody in the lists, and so with the chief supervisor, when the papers reach his office he must be permitted to exercise his best judgment as to how they shall be entered and indexed, and if by the entry of the entire list the public convenience is subserved and the purpose of the statute accomplished, the law allows the compensation prescribed for the service. Conceding that the record might have been made less in this instance without impairing the efficiency of the check against illegal voting, in the absence of evidence that the claimant acted in bad faith we can not hold that he was not authorized to record the lists at length. While the exact charge has not been judicially determined in a suit under the act of March 3, 1887, in any of the circuit or district courts of the United States, the judges of those courts, so far as we are informed, have uniformily recognized the validity of the claim in the approval of the accounts of the chief supervisors.

In the many cases decided at the present term of the Supreme Court upon the question of fees, it does not appear that the exact charge involved in this case was determined in any of those cases; but in the case of The United States v. Barber. (140 U. S. R.) the court said, in relation to charges in excess of certain folios: “ It is evident that no iron rule can be laid down upon the subject; that something must be left to the discretion of the commissioner and district attorney, and that, if the complaints are not unnecessarily prolix, their action should be sustained. This is a question of fact in all cases, and as the court below has found, not only in its formal approval of this account, but in its opinion upon demurrer, that no unnecessary verbiage was employed and no surplusage to increase fees, we think the item should be allowed.”

The issue in this case is as to whether the claimant has recorded more than is necessary in order to accomplish the purpose of having a record in his office.

There is no finding tending to show a want of good faith on the part of the claimant, or that the record is unnecessarily prolix, and in the absence of such a finding we must take the adjudication of the Circuit Court, “ that no unnecessary verbiage was employed” and no effort was made to increase the fees of the office.

We are of the opinion that the claimant is entitled to recover the sum of §8,922.85; and for that amount a judgement is entered.  