BLISS V. UNITED STATE80

191

BLtss

11. UNITE)) STATES.

(OIrctllt (Jour', E. D.MiB,ouri, E. D. January I, 1889.)

L

UlUTED STATES DISTRICT ATTORNEYS--COMPENBATION-RES ADJUDICATA.

A decree by, consent in ,an action brought by the government, taxing the district attorney's fees at a'given sum, is not conclusive that the district at· torney is entitled to the amount taxed as against the government.

2. SAME-RIGHT TO COMPENSATION-INTERNAL REVENUE TAX-ENFORCEMENT

An action to enforce the statutorl.lien for internal revenue taxes alleged to , have. been evaded by defendant is 'a civil action in which the United States are concerned, " and which it is the duty of the district attorney to prosecute under Rev. St. § 771. , 8. For prosecuting such action the district attorney is entitled to'2 per centum of the amount collected or realized, as provided by section 825. '
SAME-ExCESSIVE ALLowANCE-AUTHORITY. OF COMPENSATION. , '

OF LIEN.

4.

Authority to settle the case on payment of a given sum and all costs is Dot authority to the district attorney to retain, as against the government. the ex· cess of his fees, as taxed. over the amount allowed to him by statute.

6.

SAME--CONSENT OF COMMISSIONER OF INTERNAL REVENUE.

By cODsenting to the t",xation of a greater fee in favor of the district attorDey than the statute allows; the commissioner of internal revenue cannot preclude the government from excess.

6.

SAME-R[GHT OF THE UNITED STATES.

'i.

The excess of fees taxed and received by the district attorney over the amount allowed by statute may be treated by the government as moneys in his hands belonging to it.

In a suit by the district attorney for compensation for other prosecutions, the government may set off such excess under the act of Mar«h 8, 1887, providing for bringing Ii,uits against the United States; section 1 giving jurisdiction to determine set·offs,on the part of the government, and section II requlr--Inp; a notice of set-off to be filed.

SAMll:-SET·OFF AND COUNTER-CLAIM.

At Law. Action by William H. Bliss against the United States {or compensation for services in prosecuting certain "landfmud cases." 24 St. at Large, p. 505, § 1, provides "that the court of claims shall have jurisdiotion to hear and determine the following matters: * * * All setoffs, counter-claims r claims ,for damages, * * * or other demands whatsoever, on the part of the government of the United States against any claimant against the government in said court. * * *" Section 2 confers jurisdiction on the district and circuit courts, and by section 6 "it shall be the duty of the district attorney * * * to file a plea, answer, or demurrer on the part of the government, and to file a notice of any counter-claim, set-off," etc. _ W. H. BUss, pro Be, and Cochran, DickBon &: SmUh,for plaintiff. Tlwma8 P. Bashaw, U. S. Dist. Atty., for defendant.
THAYER,J. The seventh section of" An act to provide for bringing suits against the government of the United States," approved March 3, 1887, under which this suit is broUght, makes it the duty of the court

192

.' FEDERAL REPORTER.

in this class of cases to file a written opinion" setting forth the specific findings by the court of the facts therein, and the conclusions of the court upon all questions oflaw involved in the case. * * *" 24 St. at Large, 505, 506. In accordance with the statute the facts are stated as follows: Plaintiff was United States district attorney for the Eastern district of Missouri from about the year 1876 until about November, 1886, and in that capacity, during his term of office, filed two bills in equity in tlie name of the United States against the Pacific Railroad of Missouri et al., to enforce against certain property, theretofore owned by the Pacific Railroad of Missouri, the statutory lien for internal revenue taxes alleged to have accrued against and to have been evaded by that company from the year 1864 to 1871, inclusive. Various steps were taken by plaintiff herein and various services were rendered by him in the prosecution of said suits in the United States circuit court for the Eastern district of Missouri, from the date of their institution therein in the years 1876 and 1879, respectively, until the termination of the litigation on September 21, 1881. On the day last named the litigation was concluded by an entry of the following nature: "This day comes the district attorney. on behalf of the United States, and also comes the defendant, by Thomas J. Portis, Esquire, its attorney. and by consent it is ordered that these causes be, and they are hereby, dismissed on the payment bydefendant of the sum of one thousand dollars, and the following fees and costs. * * *" "Case No. 842, in United States circuit court. United States V8. Pacific R. R. et al. Marshal's costs, $31.44: clerk's costs. $310;90: U, S. commissioner, 50 cts.; district attorney's fee, $1,500.00: costs of engrossing bill, $78.00: costs of appeal to U. S. supreme court, $97.95." "Case No. 1510, in United States circuit court. United States V8. Pacific Railway et al. Clerk's costs, $60.05: marshal's costs, $8.24; copy, $50.00: attorney, John P. Ellis, $500; district attorney, $1,044.92." "And thereupon said district attorney, in open court, acknowledges satisfaction of the above judgment, fees, and costs."
Prior to the entry of the foregoing decree an ofrer had been made' to (and accepted by) the commissioner of internal revenue to compromise and settle the suits on payment by the defendant of $1,000, and "all costs in both suits." From the decree aforesaid no appeal was taken, nor was it subsequently vacated or modified. In his emolument return for the six months ending December 31, 1881, required to be made by section 833, Rev. St. U. S., the plaintiff. at the request of the ment of justice, charged against himself on account of the fees allowed to the district attorney by the foregoing decree the sum of $2,500. Including said item, his aggregate,fees and emoluments for the year 1881 amounted to $6,735, leaving him, by virtue of sections 835, 844, Rev. St. U. S., indebted to the government in the sum of $735, for excess of fees and emoluments over the maximum compensation allowed him by law. On April 12, 1881, plaintiff was retained by the attorney general of the United States .as special assistant attorney to the attorney general, to aid in the prosecution of certain criminal cases pending in the

BLISS tI. UNITED STATEa.

193

state of Missouri, Ohio, Pennsylvania, and other states, which cases grew out of alleged frauds perpetrated under the land laws of the United States, and are commonly designated as "land fraud cases," and in the due prosecution of which the government was interested, or deemed itself interested. Plaintiff was duly commissioned as such assistant attorney, and took the oath on April 25, 1881, and did thereafter, between the last date and April 15, 1883, prosecute in the courts of the states above named a large number of the cases abo\re referred to. For services so rendered plaintiff presented to the attorney general on April 21, 1883, an account in the sum of $4,890, giving credit thereon for the sum of $1,000 theretofore paid, and claiming a balance of $3,890. On April 23, 1883, the attorney general approved the claim for the sum of $2,500, and referred the .same to the first auditor of the treasury, to be paid from the United States attorneys' fund for the year 1883. To th.e claim in question was appended 8 certificate of the attorney general that the services embraced in the claim had been rendered, and that the same could not be rendered by the attorney general, or solicitor general, or officers of the department of justice, or district attorneys. Said account in the sum of $2,500 was adjusted by the first auditor on May 3, 1883, and found to be due the plaintiff, and was certified to the first comptroller of the treasury for his decision thereon. Said comptroller also approved the claim in the sum of but declined to certify the same to the attorney general, so that a requisition for a treasury warrant might be drawn, and the claim duly paid. The reasons asr;igned. by the comptroller for his action in that behalf are stated at length in Extra Fee Gase, 4 Lawr. Compo Dec. 422-430. In substance it may be said that, while conceding that the sum of $2,500 was justly due and properly allowed to the plaintiff for services rendered, he ruled that the fees allowed to the plaintiff by the decree of the United States circuit court for the Eastern district of Missouri, in the suits for internal revenue taxes, hereinbefore referred to, were not fees and emoluments of his office, although allowed as such :by the court, and so returned by direction of the department of justice, as before stated; but that the sum so I1llO,wed, aggregating $2,.544.92, was money belonging to the United States, and was had and received by plaintiff to its use. The comptroller accordingly directed the sum of $2,500, found to be due to the plaintiff as a fee in the "land fraud cases," to be appropiated and "carried to the .credit of the internal.revenue collections," to make good the sum of $2,500 allowed to and collected by plaintiff as a fee in the internal revenue suits. In this case plaintiff sues to recover the fee of $2,500 allowed him as aforesaid for services in the "land fraud cases." By way of setoff the government pleads that "plaintiff is indebted to it in the sum of $2,500 for money had and recejved to its use," meaning, of course, the money that had been paid to him as a fee in the internal revenue cases before mentioned. The court records do not show that the district attorney's fee allowed in the internal revenue cases was paid into the registry of the court. The same appears to have been paid directly to the plaintiff. Plaintiff's right to sue under the act of March 3, 1887, for v.37F.no.5-18

what is due to him on a claim that has' be(jtl duly audited Rnd allowed against the United States, but not actually paid, was heretofore affirmed on a plea to the jUrisdiction. BliM v. U. S.''; 84 Fed. Rep. 781.
CONCLUBIONSOll' LA.w.

1. The legally indebted to plaintiff in the sum of $2,500 for services rendered in prosecuting the "land fraud cases." 2. The 'decree in the revenue cases, above recited, determines conclusively; as between the United States and the Pacific Railroad Company of Missouri et al., that the fees taxed in favor of the district attorney in those suits were properly taxable. 'l'he court had jurisdiction of the parties and the subject-matter, including therein the matter of the taxation of fees and costs. It may have erred in making the allowance iri question to the district 'attorney, but if there was a mistake in that spect the judgment is not on that account void, but is merely erroneous. As between: the parties to the suits the allowance in favor of the district attorney is no longer open to the decree entered by consent in those cases does not conclusively establish, as between the United Stares and the d·istrict attorney, that the latter officer is entitled to the entire fee allowed him therein. The district attorney was not a party to those suits, arid a judgment or decree is only conclusive as between parties to the,record and privies. If the district attorney could berega;rded 8.S in any-sense 'a party to those suits, his position was not ad;' verse to the government, as he was its-attorney. It is generally held that, parties to a judgment are not bound by it in a subsequent controversy , between each other, unless they were adversary parties. Thus, if a judgment is recovered againsttwo or more defendants, they may, as between themselves, litigate the question as to the proportion of the judgment that each to pay; and,in likemanner,'if a judgment is recoverea by several p]aintiffil, they are not debarred from determining by further litigation among themselves in what manner the recovery ought to be di;. vided·· Goxv'. HiU, 3 Ohio, 412; Dwncan v. Holcomb, 26 Ind, 378; Lloyd' v. Barr, 11 Pa. St. 41;Wils01i t.' Mower, 5 Mass. 407; Freem. Judgm. §. 158. the. question as to the amount of fee which the district attorney is entitled to claim of the United States for prosecuting the revenue 'suits 'Was riot litigated in those suits as between the government and: the district attdtney, and that it is a question still open for consideration, notwithstanding the decree therein. '3. rrhere <lan be no doubt that it was the plaintiff's duty to prosecute the Teventle suits in question, by 'virtue 'of section 771, Rev. St. U. S. They were ;"civil actions in whIch United States werecohcerned," within the meaning of that section. It is also apparent that there is no provision of law fixing the district a:ttorney's fee for services in those S., or section 824, immedicases, unless it be section 825, Rev. St. ately preceding. I am oithe opinion that by virtue of the general la.n-' guage 'employed in selltion 825, aHowing district attorneys per: centum upon all moneys colle'cted or realized in any suit or proceeding arising under the revenue laws, conducted by thein, in which tp.e United
   

BLISS V.' UNITEDSTATEe.

'191>

StIlteSt is.aparty:t the plaintiff may rightfully cbiinic(ss he to do) that bis in. the suits againpt the Pacific. Railroad at;; so .far as. the, government is 'concerned, is determined by:that section· . 4·. The next question to be determined is can,retltini .as against the United States,a larger fee ,than thela.wallowsj' such larger \ fee having been taxed in his favor in the manner before stated:; audalready paid to him. This. would be a simple question if'therelittion existing between the plaintiff and the government was that which exists between .an ordinary client and attorney. In tbatevent, the fee collected of the adverse party.under the decree entered by' consent, eouid be'retl\ined by thElattorneyonly in the event that the agreement of compromise,contemplatingthe taxation and .payment of such fee by the adverse party, had. bElen fully and fairly explained to the client, and assented to him in advance of the compromise.' It is familiar law that. the, re" lation existing oetween client and attorney is in the highest degree of a. confidential and fiduciar:y'character. Valentine v.Strewart, 15 CaL 4@1; 1 Perry, Trusts, § 202, and cases!cited; 1 Story,Eq.:Jur. §§ 310-313. The utmost good faith (uberrima fides) must govern all of the attorney's dealings with his client.· Iia'plaintiff in a suit merely authorizes his attorney tQ compromise the same on the payment by the defendant ofagiV:en sum "and, all costs," and thereupon the money is paid, and by ment with the ·defendant a larger sum than the law permits is' taxed against.the;defendant as a fee in favor of plaintiff's attorney,undoubtedly the plaintiff, when he' learns of the transaction, may claim .as his own whatever his attorney has received from the opposing party in excess .of taxable fees. The, right of the clierit to recover money ceived by bis attorney under the circumstances last stated is not dependent to any extent upon the motives which may have actuated the attorney, nor upon the question whether the amount taxed in his favor is a reasonable fee, or ·otherwise. The law tIoes not allow an attorney to ulate with.an opposing party for the payment of his fees, in whole or in part, unless he acts with the knowledge and assent of his client. Hence, if a.n attotney, without the knowledge of his client, by arrangement with an opposing party, secures from him any fees in excess of what are Ie-gally taxable in his favor, the law regards him as holding what is so ob..; tainedin trust for his client, and it is optional with the cHenHo demand the same as a patt of the fruits of the litigation. 1 Perry, Trusts; § 206, and cases cited; Story, Ag. (8th Ed.) § 211. In the case e1'8tion plaintiff was not only attorney for the government in the crevenue cases, but he was at the saine time a public officer, whose fees were regulated by statute. and not by private contract. This fact renders it morfl difficult for him to maintain his right to the fees taxed in his favor, since a public officer cannot lawfully demand or receive greater compensation for official services than the law allows. Freeman v. Henry Co., 32 Mo. 446. By accepting office, a public officer impliedly agrees to discharge all the duties incident thereto, for such compensation as the law pre-scribes. More he cannot lawfully demand, no matter how inadequate the compensation may be. It was at least incumbent on the plaintiff to

196

FEDERAL REPORTER.

show that the commissioner of internal revenue (in whom was vested the power to compromise the revenue suits) was advised, before the compromise was consummated by a dismissal of the suits, that the compromise agreement contemplated the taxation of fees in favor of the district attorney in the sum of$2,544.92, to be paid by defendants, and that he assented to such arrangement. Proof to that effect would be requisite, as before shown, to enable plaintiff to retain the fee, if the commissioner of internal revenue had been, as to the suits in question, a merely private litigant, and the plaintiff his attorney in the prosecution ofthe same. But the evidence fails to show·such notice and assent on the part of the commissioner. It merely shows that he authorized a settlement on the payment to the government of $1,000 "and all costs in both cases." This means, of course, legal costs. I do not base my decision, however, on,the ground last indicated. I presume that the plaintiff could show that the commissioner of internal revenue assented to the taxation of the fees in question before the compromise was fully effected, or that he subsequently ratified the action of the district attorney. According to my view of the law, however, the commissioner of internal revenue could not, by consenting to the taxation of a greater fee in favor of the district attorney than the law allowed him; thereby preclude the government from asserting its right to so much of the fee as was excessive. I conclude that, as soon as the fee was paid to the district attorney by the defendant in the revenue suits, so much of it as was in excess of what the law allowed for his services inured to the benefit of the United States. The government was forthwith at liberty to treat what was so paid to its attorney in excess of his lawful fees as money in his hands belonging to the government. 5. The right of the government to set ofI'what is due to it from the plaintiff against his fee in the" land fraud cases," is clearly recognized in the first and sixth sections of the act which this suit is brought. 24 St. at Large, supra. The amount due on the set-off is not $2,500, however, as pleaded. Plaintiff is entitled to a credit thereon in the sum of $70.89, being 2 per cent. on $3,544.92, the total amount realized by the government in the revenue suits. If be bas already paid to the government the sum of $735, shown to be due by his emolument return for the year 1881, on account of fees received for that year in excess of the maximum compensation aHowedhim by law, he is also entitled to a further credit in that amount. Additional proof will be received as to whether the sum of $735 has been paid to the government, and judgment will then be entered in accordance with the views.

JUNGE fl.

HEDDEN.

197

JUNGE '17. HEDDEN.

«(}ircult Oourt, S. D. NI!:UJ York. January 9, 1889.)

1.

OUSTOMS DUTIES-CLASSIFICATION-DENTAL RUBBER.

The article known as "Dental Rubber," lind used for making the plates In which false teeth are set, is dutiable at 25 per cent. ad -oalorem under Schedule N of the tariff act of March 3. 1883.

.. SAME-CONSTRUCTION OF TARIFF ACTS-" ARTICLE. "

The word "article," as used in tariff acts, is not to be restricted to articles put in a condition for final use, but is used in a broad sense, and covers equally things manufactured, things unmanufactured, and things partially manufactured. (Syllabus by the Oourt.)

At Law. Action to recover back customs duties. , The plaintiff in 1885 imported into the port of New York certain goods composed of India rubber with an admixture of sulphur and coloring matter, and known as "Dental Rubber," and used for the manufacture of the plates in which false teeth are set. The defendant, as collector of customs, classified them for duty at 25 per cent. ad valorem under the clause in Schedule N of the act of March 3, 1883, imposing that rate of duty upon "rtrticles composed of India rubber, not specially enumerated or provided for in this act." Paragraph 454, Tariff Index, new. The plaintiff, by an alternative protest, claimed that the importations were {ree, either actually or by similitude, as "India rubber, crude,and milk of," or that they should pay only 20 per cent. ad valorem as a non-EmU;' merated manufacture by virtue ofsection 2513 of the act of March 3, 1883. The testimony on one side and the other was substantially to the same effect, to-wit, that the articles in question were known in trade and commerce of this country at the time of the passage of tbe act and since as "Dental Rubber," and used exclusively by dentists for the uses above iri. diQated; that tbere was prior to and on March 3, 1883, and has been since, anarticle known in trade and commerce of this country under the name of" Crude Rubber" which is not this article; that crude rubber is put to many uses other than those of dentists; that the importations in question, in tbe condition imported, are ready to go to the dentist for manipulation by bim; that, commercially speakIng, it has been spoiled for any other use; and that any further manipulation or manufacture prior to that applied to it by the dentists wodld unfit it for their purposes. Stephen G. Clarke and Oharles Curie, for plaintiff. Stephen d. Walker, U. S. Atty., and Macgrane Cau, Asst. U. S. Atty. LACOMBE, J., (orally, after stating the facts as above.) Descriptive terms applied to articles of commerce are of course to be understood according to the acceptation giveri to them by commercial men in our own ports at the time of the passage of the act in which they are found. Under the testimony, therefore, these importations are not "crude rubber," or