United States v. Case , 49 F. 270 ( 1892 )

Coxe, District Judge.

The accounts offered in evidence by the plaintiff bring the defendants into debt, because the officials of the post-office department have charged the defendants in gross with “commissions ille7 gaily claimed” and .“property illegally retained,”withouta word of proof, so far as the accounts show, to sustain the charges. These officials haye tried the question at issue between the department and the postmaster, found him guilty of malfeasance, assessed the damages against him and certified their findings. The evidence, if there was any, on which these findings are based, has not been returned. There is nothing to show what the property was that the postmaster is accused of retaining improperly, or its value, or the reasons which induced the officials of the department to make the charges relating thereto. The account does not show-why the commissions are illegal. It contains nothing but the unsupported doeroo of condemnation. If this sweeping and arbitrary power is conceded to the officers of the department, they could as well have made the deficiency twice or three times as great as it is. They have only to make a charge, no matter how unfounded it may be, and have it certified, and tire postmaster and his bondsmen are without remedy. Of course the foregoing suggestion is made merely by way of illustration, without intending to intimate that such abuse of power has ever taken place; in the case at bar the officials unquestionably acted with entire good faith. It is thought, however, that it was not the intention of the law that executive officers should be clothed with the power thus to usurp the province of court and jury and decide, finally and irrevocably, questions of fact upon ex parte and hearsay statements. Such power is not found in the sections of the statute referred to. They were intended to promote the convenience of the departments and the courts. If the original of a paper, book or account is evidence, a copy properly certified, is equally admissible. It was not the intention of congress to admit incompetent evidence under the guise of a certificate. The following authorities are in accord with these views: U. S. v. Jones, 8 Pet. 375; U. S. v. Forsythe, 6 McLean, 584; U. S. v. Buford, 3 Pet. 12; Hoyt v. U. S., 10 How. 109; U. S. v. Smith, 35 Fed. Rep. 490; Cox v. U. S., 6 Pet. 172, 202; Smith v. U. S., 5 Pet. 292; U. S. v. Edwards, 1 McLean, 467; U. S. v. Patterson, Gilp. 17; U. S. v. Battie, Id. 97; Bruce v. U. S., 17 How. 437, 440; U. S. v. Eckford’s Ex'rs, 1 How. 250.

Again, it is said that the provisions of the act of June 17, 1878, which authorize the postmaster-general to withhold commissions on returns which he is satisfied are false, do not permit him to charge a postmaster with commissions on alleged false returns where the accounts have, in the due course of business, been settled and allowed. He may withhold commissions, but having allowed them, he cannot recover them without due process of law. There is great force in this position. U. S. v. Hutcheson, 39 Fed. Rep. 540; U. S. v. Johnston, 124 U. S. 237, 8 Sup. Ct. Rep. 446.

It follows that the verdict must he set aside, and a new trial granted.