COLMAN v. UNITED STATES, 66 F. 695

WOODS, Circuit Judge. The appellant, Elihu Colman, was district alio my of the United States for the Eastern district of Wisconsin from February 6, 1890, to April 24, 1893. In September, 1891, he was instructed by the department of justice to co-operate with Albert E.

Thompson, who had theretofore been appointed a special assistant attorney general, in the management of the flow-age damage cases against the government pending in the United States circuit court for the Eastern district of Wisconsin.' The cases referred to had arisen under the act of congress of March 3, 1875, whereby the owners of land or property adjacent to the Fox and Wisconsin rivers were allowed to bring actions against the United States for damages caused by the improvement of those rivers by the government.

Of the cases brought and pending in the court of the Eastern district of Wisconsin when the appellant was directed to aid in their management there were about 150. The sums claimed amounted to $231,818, and in most of the cases awards had been entered, which aggregated $127,468. The appellant, in obedience to instruction, assisted in the preparation for the trial and in the trial of a test case, and in the settlement and disposal of the other cases except three, which remained pending when he quit office, involving not more than $500.

The judgments obtained against the government in the cases disposed of had been reduced below the awards to the sum of $36,171.34, which result, it is alleged, was largely due to the skill and labor given to the management of the cases by Thompson and the appellant. The test case was the case of the Paine Lumber Company, Limited, against the United States (55 Fed. 854), in which the demand was $100,000, the award $65,621, and the trial, which lasted more than a month, resulted in a verdict for $5,588.34.

Besides the damage flowage cases, but, it is alleged, directly connected with them, were two other cases under the charge of Thompson, in the preparation and trial of which the appellant assisted, namely, the case in equity of the United States against the Winnebago Paper Company and 36 other defendants, involving the rights of the parties in the flowing water of Fox river, and the case in ejectment of the United States against the Manufacturers’ Investment Company.

Accompanying the complaint or petition of the appellant are bills of particulars of the services rendered and expenses incurred in each of these cases, the total charge for services being $4,000, and for expenses $78.80. It is alleged that the attorney general had allowed the claims to the amount of $2,708.50, but that the comptroller of the treasury had refused to allow any part of them.

The court found specially (1) that the services were duly rendered as alleged in the petition, but were in pursuance of his office, and during the term of office of the petitioner as district attorney; (2) that the services in the flowage cases were rendered under the direction of a communication from the department of justice, accompanied by a letter of request therefor by A. E.

Thompson, copies of which are set out in the finding; and (3) that the services stated in the petition were reasonably worth the amount claimed in the petition in each of the matters therein set forth, upon the basis of the customary professional charges for such services. As matter of law- the court found in substance that the United States was not liable to the appellant for the value of his services, but only in the amounts provided by statute for such services. We concur in that conclusion. Statutory provisions pertinent to the subject are collected and considered in the case of Gibson v. Peters, 150 U.

S. 342, 14 Sup. Ct.

Section 770 of the Revised Statutes fixes the salary of a district attorney, and

section 771 makes it his duty “to prosecute, in his district, all delinquents for crimes and offenses cognizable under the authority of the United States, and all civil actions in which the United States are concerned.” Sections 823 to 827, inclusive, prescribe the fees which shall be allowed to district attorneys “in civil or criminal cases,” “in cases of admiralty,” “in cases at: law,” and for other specified services, and that “no other compensation shall be allowed them.” When these provisions are construed, as in Gibson v.

Peters it is declared they must be construed, in connection with sections 1764 and 1766, which forbid compensation for “extra services” and “extra allowance or compensation, in any form whatever,” “unless the same is authorized by law,” there can be no doubt of the right conclusion. The contention of the appellant is that the services in question were rendered by virtue of a special statute, which provided that the department of justice should represent the interests of the United States in legal proceedings under the act, including flowage .damage cases (18 Stat. 506, c. 166); that this act, unlike

section 380 of the Revised Statutes, under which the case of Gibson'v. Peters arose, did not require that the district attorney should have charge of the cases arising under it, and that the cases were not “civil causes,” or “cases at law,” for which docket fees are allowed by

section 824, but special proceedings under the Wisconsin statute for the assessment of damages. It may be conceded that in the state court the proceeding for the assessment of damages was a special proceeding, as distinguished from a civil cause or case at law, but on appeal, which either party was entitled to take, and certainly in the federal court after transfer, “the proceeding,” to use the words of the supreme court in U. S. v. Jones, 109 U. S. 513, 517, 3 Sup.

Ct. 346, “so far as the ascertainment of compensation is concerned, takes the form of a regular action at law, in which the petitioner becomes the plaintiff and the contestants the defendants.” The damage oases, therefore, from the time the appellant was directed to cooperate in them, like the case in equity and the action in ejectment, were “'civil causes” or “civil actions” in which the United States was' concerned, and which it was a part of the appellant’s official duty to prosecute or defend.

It has been suggested that, in any event, the appellant ought to recover Ms expenses, but, as the court made no finding in respect to the items of expense, the question is not in the record. The judgment of the circuit court is affirmed.