195 F. 981 | D. Mont. | 1912
Complaint was made herein by a special agent of the General Land Office of the United States that respondent had in three instances charged excessive and so illegal fees for official services rendered to applicants for public lands. Thereon a citation issued from the court, directing respondent to show cause why he should not be removed from his office. Respondent answered, and thereafter the proceeding was submitted for decision upon an agreed statement of facts. It was therein agreed that the complaint in reference to one instance aforesaid should be dismissed as un
The act of March 4, 1904 (33 Stat. 59), provides that “all proofs, ■affidavits, and oaths” required under the public land laws may “be made before any United States Commissioner”; that “the fees for entries and for final proofs, when made before” such officer, shall be "for each affidavit, twenty-five cents. For each deposition of claimant or witness, when not prepared by the officer, twenty-five cents. For each deposition of claimant or witness, prepared by the officer, one dollar.” And to demand or receive a greater sum .for such service is by said act made a misdemeanor punishable by fine.
The contention on behalf of the complainant is that the homestead application aforesaid is an affidavit for which the respondent could charge but 25 cents for filling the blanks therein, administering the oath thereto, and attaching his jurat; that the desert application aforesaid is three affidavits, one for applicant and one for each of his two.
The court agrees with neither of these contentions. The said applications embody affidavits, but they are applications and affidavits combined. Wherein the statute says affidavits may be “made before” the Commissioner, it means that they may be executed before him—i. e., subscribed and sworn to by the affiant before him—and means no more. The official duty of the Commissioner is to administer the oath and attach his jurat to the affidavit, and no more. For this service the statutory fee is 25 cents. The affidavit is “i ^ade before” the officer when subscribed and sworn to before him, by whomever drafted, and it is “made before” the officer when so subscribed and sworn to before him, though theretofore drafted by the officer. It is no part of the officer’s duty to draft affidavits in whole or in part, as by completing the skeleton form thereof with matter of substance. vSuch drafting of the affidavit may be done by anybody, and needs be done before nobody, and such drafting is no part of the ceremony wherein the affidavit is “made before” the Commissioner, If the officer actually drafts the affidavit or any portion thereof, it is a service rendered beyond his official duty; and this statute does not forbid making a charge therefor and any charge upon which the parties agree, or, in the absence of agreement, that the service is reasonably worth. For completing the application part of such combined applications and affidavits, the Commissioner may likewise legally charge and receive compensation, as for services beyond his official duty and in the capacity of employé.
United States Commissioners are located throughout the states where settlers are entering public lands, and for their convenience. They usually are supplied with information in reference to vacant lands, impart it to and otherwise advise settlers, keep a supply of such printed and prescribed blank applications, affidavits, or forms as the Dand Department insists upon, prepare them for applicants, draft necessary affidavits for which there are no prescribed and printed forms and some of which may extend to many pages and require much skill and ability, secure needed copies of records, transmit the settler’s application and money to the proper land office, and well serve the settlers in many ways, often saving them much time, labor, and money. In many places there is no one conveniently at hand to render such services but the Commissioner. These services are rendered as an employé, and not as an officer, and it is not the intent of the statute that they may not be charged and compensated for. With them the statute has naught,to do. Let it be noted, however, that the charges for services in the line of official duty and the charges for services in the 'line of an employé should not be com
It follows that the charges are-not sustained, and the citation herein is dismissed.