Sivut kuvina

Opinion of the Court.

trespasser and cut from the public domain this timber wantonly and maliciously, the government is entitled to recover from him the full value of the timber by him so cut and removed from the public domain, without allowing at all for the increased value that he put upon it; for it will not be permitted that a man shall trespass on your property and commit waste and wanton destruction by removing it, that you shall be merely indemnified for the original value - in other words, you may recover your property and its value wherever you find it, whether the man has added to its value since he got it or not. This case is somewhat different from the case yesterday. This case presents this naked fact: That if you return a verdict for the government, it must be for the value of the lumber manufactured. Now, no evidence has

. been offered in the case showing the market value of the trees, or if they had any market value one way or the other. There is no evidence in the case to warrant you in concluding that the trees had any market value in 1879 or at any other time. The only evidence offered by the government is as to the value of the timber after it was cut and made into lumber, and in that way this case differs from the case yesterday. Yesterday I instructed you in that case that if you find that although there was a trespass, that it was not wilful, you might determine the value of the timber as it stood on the ground. In this case there is no evidence of that kind.”

The jury found a verdict for the defendant, and the government has brought the case here on error.

Mr. Assistant Attorney General Parker for plaintiffs in error. No appearance for defendant in error.

Mr. JUSTICE BREWER, after stating the case, delivered the opinion of the court.

The only errors alleged are in the charge. The specific portions to which the attention of the court was called at the time and exceptions taken are that which refers to the history

Opinion of the Court.

of the attitude of the government toward pioneers and others who took timber from government lands for domestic use, and that which declared that no verdict could be returned in favor of the government except for the value of the lumber manufactured. In these there was obvious error. Although there was no direct evidence of the value of the standing trees, yet it did appear that they were manufactured into lumber, and that the lumber had commanded a price of from eight to nine dollars a thousand feet, and when the government proved or defendant admitted that he cut and carried away some of the timber on this tract, the government was entitled to at least a verdict for nominal damages. As to any further right of recovery, see Wooden-ware Co. v. United States, 106 U. S. 432; Benson Mining Company v. Alta Mining Company, 145 U. S. 428.

Nor were the observations of the court in reference to the attitude of the government justifiable. Whatever propriety there might be in such a reference, in a case in which it appeared that the defendant had simply cut timber for his own use, or the improvement of his own land, or development of his own mine, (and in respect to that matter, as it is not before us, we express no opinion,) there certainly was none in suggesting that the attitude of the government upheld or countenanced a party in going into the business of cutting and carrying off the timber from government land, manufacturing it into lumber, and selling it for profit; and that was this case. There is no pretence that the defendant cut timber for his own use; he says himself he sold it all. He ran a sawmill, cut timber, manufactured it into lumber, and made profit out of the sale of the lumber. There is nothing in the legislation of Congress or the history of the government which carries with it an approval of such appropriations of government property as that. The judgment must be reversed, and a new trial ordered.


No. 235, UNITED STATES v. HUMPHRIES AND Mock. Error to the Circuit Court of the United States for the Northern District of

Statement of the Case.

California. Submitted April 21, 1893. Decided May 1, 1893. BREWER, J.: This case is so nearly like the case just decided, that it is unnecessary to refer to the facts in detail. There also appears in this a further matter of error, in that the court, over the objections of the government, permitted the defendants to introduce evidence that their mill was not profitable. Certainly, whether they made money or not, does not affect the right of the government to recover, or the measure of recovery.

The judgment in this case will also be Reversed, and a new trial ordered.

Mr. Assistant Attorney General Parker for plaintiffs in error.

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An order of the Postmaster General, made in the exercise of the discretion

given him by the act of June 17, 1878, 20 Stat. 140, c. 259, § 1, withholding commissions from a postmaster, and allowing a stated compensation in place thereof, in consequence of alleged false returns in the postmaster's accounts, is not final and conclusive in an action by the United States against the postmaster and the sureties on his bond, to recover moneys alleged to be illegally withheld; but is competent evidence on the part of the government, which may be explained or contradicted by the defendants.

This was an action brought by the United States to recover from Anna M. Dumas, and the sureties on her official bond, money alleged to have been illegally retained by her while postmaster at Covington, St. Tammany Parish, Louisiana.

It appears from the record that Anna M. Dumas was postmaster at the above-named place from January 1, 1881, to August 3, 1885, and that on October 1, 1883, a bond, in lieu of a former one, was executed. This bond was in the usual form, and was given to insure the faithful performance of her

Statement of the Case.

duties as postmaster. The accounts rendered by her as post-
master at the end of each quarter were examined September
1, 1886, by the Auditor of the Treasury for the Post Office
Department. This examination resulted in a claim that she
had made false returns of the business done at the post office
at Covington, whereby she is alleged to have illegally retained
from the government the sum of $709.89 in excess of her com-
missions for the period from October 1, 1883, to August 3,
1885, the time covered by the conditions of the bond last exe-
cuted. A statement of accounts, certified to by the Auditor,
to which is appended copies of papers pertaining to the ac-
counts, is made a part of the record. A demand was made
on June 8, 1887, upon her, and the sureties on her bond, to
make good the deficit. Payment was not made, and the
Postmaster General issued the following order:
"Order No. 161.)


WASHINGTON, D. C., August 11th, 1888. “Being satisfied that A. M. Dumas, late P. M., Covington, St. Tammany Co., La., has made false returns of business at the post office at said place during the period from Jan. 1, 1881, to Aug. 3, 1885, thereby increasing her compensation beyond the amount [s]he would justly have been entitled to have by law; now, in the exercise of the discretion conferred by the act of Congress entitled 'An act making appropriations for the service of the Post Office Department for the fiscal year ended June 30, 1879, and for other purposes,' approved June 17, 1878, (section 1, chapter 259, Supplement to Revised Statutes,) I hereby withhold commissions on the returns aforesaid, and allow as compensation in place of such commissions and in addition to box-rents) deemed by me, under the circumstances, to be reasonable during the period aforesaid, the rate of $72.50 per quarter from Jan. 1, 1881, to March 31, 1883, and $95 per quarter from April 1, 1883, to August 3, 1885, and the Auditor is requested to adjust her accounts accordingly.


Wm. F. VILAS, Postmaster General.

Counsel for Plaintiffs in Error.

At the trial of the cause in the court below the issue before the jury was whether Anna M. Dumas, as postmaster, did collect and receive in her official capacity from October 1, 1883, to August 3, 1885, in excess of the compensation fixed and allowed her in the order of the Postmaster General, and above all proper expenditures, the sum of $709.89. On this issue the plaintiffs in error requested the court to give the following instruction to the jury:

“If the jury are satisfied that plaintiffs have proven that the Postmaster General of the United States, being satisfied that Anna M. Dumas, late postmaster at Covington, Louisiana, had made false returns of business in said post office, withheld the commissions of said Anna M. Dumas, as such postmaster, and allowed her such compensation, in lieu of said commission, as he, the said Postmaster General, deemed reasonable ; and if the jury further find that the amount sued for by plaintiffs in the cause is arrived at by reason of such withholding of said commissions and by the allowance to her of such compensation by said Postmaster General, then the jury must find for the United States."

This instruction the court refused to give, and charged the jury in regard to the order (No. 161) of the Postmaster General as follows: “This order was in its nature provisional. The adjustment is only prima facie evidence that the account is as stated therein."

The jury found a verdict for the defendants and judgment was entered accordingly. The bill of exceptions does not show the character of the evidence admitted or refused to be admitted. The plaintiffs sued out a writ of error, and assign as errors that the court below erred in refusing to instruct the jury as requested by the attorney of the United States, and in charging the jury as to the force and effect of the order of the Postmaster General, and the accounts of the postmaster as certified by the auditor.

Mr. Assistant Attorney General Maury for plaintiffs in error.

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