law, still be an offer in the service of the United States, then that fact is well averred, and there is nothing repugnant between the two averments. A marshal, whose time has expired, is, for the performance of certain duties, still an officer. Section 790 of the Revised Statutes declares that every marshal, or his deputy, when removed from office, or when the term for which the marshal is appointed expires, shall have power to execute all such prece ts as may be in their hands, respectively, and the marshal shall be held responsible for the delivery to his suocessor of all prisoners who may be in his enstody, &e.

A marshal is appointed for a period of four years. When his time is on, it is true he does not hold over until his successor is appointed or qualized; but by the provisions of the section just cited he is still an of or for the performance of certain duties. When, therefore, the first coast of the in Bitment described Turner as late marshal, and averred Liz to be when the account was presented, an officer in the civil service of the United states, the description was accurate and pertinent, and not rej ZALL We are of the opinion, therefore, that it is suffiGently averted that the account was presented to an officer in the civil service of the Dzited States.

It is next statel, as grou 1 of demarrer to the first count, that the servies allezel to Lave been performed, and payments alleged to have been made by defen luit, are not charged to have been services and pagnents for the United States, or that the services were performed and payments made by defendant, as deputy marshal, so as to show that the marshal was the proper officer to whom said claim should be presented for approval. But we think it is sufficiently averred that the services were performed for the United States. The claim is alleged to be a claim against the United States; it is alleged to be for services parporting to have been performed by said deputy marshal in a criminal procebling bebore a United States commissioner, in which the United States was the plaintiff, and that it was a claim in favor of the said Izmer. late Larshal, and against the United States.

These averments make it perfectly apparent that the account was for services rendered the United States by a deputy marshal, and that the marshal was the proper officer to whom his deputy should present the account for allowance.

It is next alleged that the first count is repugnant, because it avers that the claim was presented to George Turner for his approval, and also avers that the claim was in favor of George Turner.

The method of procedure, prescribed by law for the settlement of the accounts of marshals, of which the court takes judicial notice, and which it is, therefore, not necessary to aver, makes it apparent that there is Lo ground for this objection to rest on. The law authorizes the appointment of deputy marshais Rev. Stat.. sec. 780), and prescribes their oath of office Rev. Stat.. sec. 762, in which they are required to swear that they will take only their lawful fees. In all cases, except where specially provided by statute, a deputy marshal has the same powers and may perform the same duties as the marshal. To prevent a multiplicity and complication of accounts, the fees of the deputies are presented to the Government for allowance, through the marshal, and in an account made out in his name, of which the verified account of the deputy for his services forms a part. The money collected on this account is paid in the first instance to the marshal, who pays the deputy his share. The accounts of the deputy are made out against the United States and in favor of the marshal. It may, therefore, well be averred that the account of a deputy marshal, in favor of the marshal and against the

United States, was presented to the marshal for his approval. There is nothing absurd or repugnant in such an averment.

But it is contended by defendant that the marshal is not an officer, authorized by law to approve a deputy marshal's account.

It will be observed that the section on which the indictment is based makes it an offense to present a false claim for approval to any person or officer in the civil, military, or naval service of the United States. The presentation need not be to an accounting or auditing officer. It need not even be to an officer. It may be to an officer or person in the civil, military, or naval service of the United States. The approval meant by the statute is not, therefore, confined to the passing of the claim by the accounting officers of the Treasury, or its approval by court or judge. When a deputy marshal presents his itemized account for his fees and costs, verified by his oath, to the marshal, who is expected to incorporate it in his own account against the United States, and to make it one of the vouchers to sustain it, and to swear that he believes all the items therein charged are correct and legal, and the amounts thereof are justly due to him, as therein stated, the deputy may well be said to present, within the meaning of the statute, his account to the marshal for approval. The marshal adopts the verified accounts of his deputies, swears to his belief in their correctness, demands pay for them from the United States. He may, therefore, well be said to approve them. Without such approval, the deputy could not take a step toward the colection of his claim against the Government out of the Treasury.

There are other grounds of demurrer to the first count; but they are either covered by what we have said, or alleged defects or imperfections in matters of form only, which do not tend to the prejudice of the defendant, and are, therefore, not matters upon which the count can be held to be insufficient. (Rev. Stat., sec. 1025.)

In our opinion, the count avers, with all requisite certainty, the presentation by the defendant for approval to an officer in the civil service of the United States, with intent to defraud the United States, of a false, fictitious, and fraudulent claim against the Government of the United States, he well knowing the same to be false, fictitious, and fraudulent. This covers every element of the offense described in the statute; it gives the defendant, as well as the court, notice sufficiently specific of the charge against him, and is sufficiently definite to enable him to plead his conviction or acquittal, should he ever be again indicted for the same offense.

It is alleged, as ground of demurrer to the third count, in addition to the grounds urged against the first count, and which we need not again particularly notice, that the presentation of the claim alleged in that count was a presentation to the district court of the United States, and to the Hon. John Bruce, district judge, therein presiding, neither of which allegations are within the statute, because the district court is not a person or officer in the civil service of the United States; and the Hon. John Bruce, district judge, is not an officer to whom the claim in this count described can be lawfully presented for approval. It is a presumption of the law that Congress legislates with intelligent purpose, and in view of the existing statutes. Before the passage of the act of February 22, 1875, heretofore mentioned, the accounts of marshals were required to be examined and certified by the district judge before they were presented to the accounting officers of the Treasury (Rev. Stat., sec. 846), and if a deputy marshal presented a fraudulent claim against the United States to a district judge for his approval, he would

have been liable to the penalties in section 5438, on which the indictment is founded. It is claimed, in behalf of defendant, that, by the passage of the act of February 22, 1875, Congress intended to require deputy marshals to present their claims in open court for approval, and that the act allows them to present false, fictitious, and fraudulent claims with impunity. We cannot believe that such was the purpose of this legislation, but, that, on the contrary, it was to provide additional guards against the presentation of false claims.

The contention of the counsel for defense is, that the law only punishes the presentation to a person or officer in the civil service of the United States of a false claim, and that when a false claim is presented for approval to the district court of the United States, in which the district judge is presiding, that that is not a presentation thereof to an officer in the civil service of the United States. In other words, that a United States judge, in vacation, and when not engaged in the discharge of his usual duties, is an officer in the civil service of the United States; but when engaged in holding a term of court, he ceases to be an officer in the service of the United States, and his identity as such is lost, and he is only a court or a member of a court. We think that a United States judge is at all times an officer in the civil service of the United States, within the meaning of the statute, and that, when a claim is presented to a court of which he is the presiding officer, it is presented to an officer in the civil service of the United States. The act of approval or disapproval, required of the court, is not a judicial, but only a quasi judicial act; for it is expressly made, by the act of February 22, 1875, subject to the revision of the accounting officers of the Treasury. We think an examination of section 1 of the act of 1875 will show, by its own terms, that when an account is presented to the court for approval, the judge acts as an officer in the civil service of the United States as well as a court. The section is somewhat disjointed; but it declares in substance and effect that before any bill of costs in favor of clerks, marshals, and district attorneys shall be taxed by a judge or other officer it shall be presented to the district or circuit court, and that before any account in favor of the same officers, payable out of the Treasury, shall be allowed by any officer of the Treasury, it also shall be presented to the district or circuit court for approval. The taxing of a bill of costs is synonymous with approval of a bill of costs. By the express terms of the section under consideration, when a bill of costs is presented to a court, the judge taxes it. Now, if the contention of counsel for defendant is sustained, when an account in favor of the marshal, which is, or at least may be, a bill of costs, is presented for approval to the same court, the court alone acts, and the judge does not, so that this absurd result follows, that when a claim against the Government is called a bill of costs, if it is a fraudulent bill, it is an offense against the law to present it for allowance; but if the same identical bill, no matter how false and fraudulent, is called an account, it may be presented to the court for allowance with impunity. A construction of the statute which leads to such a result cannot be sound.

Our conclusion is, that section 1 of the act of 1875 was not intended to relieve from the penalties prescribed by section 5438, on which the indictment is based, any person who should present for allowance to a district or circuit court of the United States a false and fraudulent claim against the Government, and that a presentation to the court, under the act of February 22, 1875, is, within the meaning of section 5438, a presentation to an officer in the civil service of the United States.

It is contended by counsel for the defendant that the account of a deputy marshal for his fees is not a claim against the United States; but in the first count, the account presented to the marshal for approval, and in the third count, the account presented to the district court for approval, are both averred to be accounts in favor of George. Turner, the then late marshal, and not accounts in favor of the deputy marshal.

The grounds of demurrer to the second and third counts of this indictment are identical, the counts themselves being, in all respects, similar. All the grounds except one are based on the alleged uncertainty of the counts. Without going into a discussion of them, we are of opinion that the counts aver with requisite certainty all the elements of the offense which they are intended to charge. They aver, in the language of the statute, that the deputy marshal, as aforesaid, for the purpose of aiding to obtain the payment of the claim aforesaid, which had been particularly described in the previous counts, did use a false affidavit of the correctness of said claim, he knowing the same to contain certain false, fraudulent, and fictitious statements and entries which are set out in haec verba.

The remaining objection to the counts under consideration is, that they do not aver that the said false claim was ever presented for payment to or by any person or officer in the civil, military, or naval service of the United States. This ground of demurrer, we are of opinion, is not well taken. The words of the statute, upon which these counts are based, of themselves, fully, directly, and expressly, without uncertainty or ambiguity, set forth all the elements necessary to constitute the offense intended to be punished. The counts under consideration aver all these elements with a requisite certainty and particularity. It is not, therefore, necessary to make other averments. (United States vs. Carll, 105 U. S. R., 611.)

Section 5438, on which all the counts of this indictment are founded, is a broad and comprehensive enactment. It is intended to punish the presenting for approval or payment of any false and fraudulent claim against the United States to any person or officer in any brauch of the service of the United States, or the use of any false receipt, voucher, account, certificate, or affidavit, to obtain, or aid in obtaining, the approval or payment of any false and fraudulent claim. The elements of the different offenses described in the statute lie within narrow limits. We are of opinion that the several counts of this indictment sufficiently describe these offenses, and sufficiently charge the defendant. Our conclusion, therefore, is that the demurrer to the indictment and the several counts thereof should be overruled, and it is so ordered. BRUCE, district judge, concurred.

To

APPOINTMENT OF DEPUTY MARSHALS.

[Circular No. 9, 1883.]

DEPARTMENT OF JUSTICE,
Washington, July 10, 1883.

SIR: The Department is informed that deputy marshals in some districts employ one or more assistants to serve process, make arrests, and transport prisoners, who are called "bailiffs," or "special deputies." This employment is unauthorized by law. No deputy will be allowed in his accounts for services rendered by any "bailiff," "special deputy,' or other person appointed by himself to make service.

No deputy is permitted to swear to any account, or item of an account, other than for services actually rendered by himself under warrant of law.

Any marshal who knowingly permits a deputy to swear to an account for services hereafter performed by persons other than himself will commit an offense that warrants removal.

SIR: The former requirement upon United States commissioners to make three monthly reports of their proceedings, one of which was to be sent to the Department of Justice, is now withdrawn to the extent that they will be required no longer to make a report to the Department of Justice.

You will show this letter to the court, and state that the Department requests that the commissioners be instructed to make but two reports at the end of each month, one to be filed in the clerk's office, the other to be sent to the Commissioner of Internal Revenue by the clerk.

In accordance with the above, the commissioners will no longer be allowed to charge fees for making mouthly reports to this Department. Very respectfully, BENJAMIN HARRIS BREWSTER, Attorney-General.