196
THE GREEN BAG
statutes, although one of a like character relating to the circuit judge is in the gen eral statutes, viz: "For reasonable expenses for travel and attendance of district judges directed to hold court outside of their dis tricts, not to exceed ten dollars per day each, to be paid on written certificates of the judges and such payment shall be al lowed the marshal in settlement of his ac count with the United States." Judge Swayne certified the maximum of ten dollars per day and the fact that in the instances relied on he had not disbursed that sum was not seriously contested. It was claimed that many other judges certified in the same manner, and that under the authority of United States v. Hill, 120 U. S. 169, the con temporaneous and continuous interpretation of a doubtful statute by judges, heads of de partments and accounting officers would govern. In 1896 when this law first made its appearance in an appropriation bill, the attention of the Senate was expressly called to the fact that under a similar statute "Judges were certifying ten dollars a day regardless of the actual expenses to which they were put," and the Senate proposed to correct the practice by adding to the section after the word "Judges" the words, "which said certificate shall state in all cases that the judge had actually incurred or paid the expense therein stated." This amendment was disagreed to in conference and in lieu thereof the words "and such payment shall be allowed the marshal in settlement of his account with the United States" were added and by implication Congress thus recognized the propriety of that construction and practice. It appeared that when this paragraph in the appropriation bill for 1898 was under consideration in the House, Mr. Cannon, the chairman of the Committee on Appropria tions (Speaker of the last House), stated that the circuit judges certified their ac counts for expenses "upon the basis of ten dollars per day." . . . "Now the provision in this bill, as we
have reported it will allow these district judges ten dollars a day upon their certifi cates in the same way that the circuit judges get their allowances (which we cannot pre vent them from getting) at the rate of ten dollars per day." Whatever the true construction of this statute may be it is very clear that Mr. Cannon understood it to authorize a certifi cate for ten dollars per day without refer ence to actual disbursements, and that act ing upon that construction the House placed it in at least one appropriation bill. To hold that when Judge Swayne placed the same construction upon the statute he was beyond a reasonable doubt acting corruptly and dishonestly or that it is not fairly open to two constructions would impeach either the intelligence or candor of Mr. Cannon, either- of which conclusions would be en tirely inadmissible. The House sustained these articles by six majority. The Senate failed to sustain them by a vote of 33 to 49. Bard and Kittredge, Republicans, voting guilty, and Dubois and Gibson, Democrats. voting not guilty on the first article, being joined by Clarke of Montana, a Democrat, on the second and third articles, which were lost by a vote of 32 to 50. Article 4 was based upon the use of a private car on a trip from Guyencourt to Florida belonging to a railroad, the receiver for which had been appointed by Judge Pardee and concurred in by Judge Swayne. The judge was charged with unlawfully appropriating the car to his own use without making compensation to the owner and with allowing as judge the credit claimed by the receiver for the expenses of said trip as a part of the necessary operating expenses of the road. The facts were, that the receiver on his own motion tendered the use of the private car to Judge Swayne and his family from Guy encourt to Florida, and that the accounts were never passed upon by Judge Swayne at all. It was not pretended that it in any way influenced his judicial action or was
