United States v. McMillan

This was an action brought December 31, 1892, in the Third judicial district court of the territory of Utah, by the United States against Henry G. McMillan, clerk of that court, and the sureties on his official bond, to recover the amount of certain fees received by him and not accounted for.

The complaint contained two counts, the first of which alleged that 'between January 8 and December 31, 1889, inclusive, the said Henry G. McMillan, while clerk as aforesaid, and as such, earned, collected, and received from different sources, as the fees and emoluments of his said office, $7,458.70, of which sum $988.90 was earned and received in United States business, $3,776 for declarations of intention and naturalizations, and $2,693.80 from private persons in civil litigation, and from the territory of Utah, on account of territorial business'; that he was entitled to retain, of the moneys aforesaid, the sum of $1,984.93 as his personal compensation, and the further sum of $1,744.05 as the reasonable and necessary expenses of his office, as allowed by the attorney general of the United States; that it was his duty, as clerk aforesaid, on January 31, 1890, to account for and to pay over to the United States all moneys, so earned and received by him as aforesaid, in excess of these two sums; and that he neglected and failed so to do.

The second count was precisely like the first, except that it related to fees received between January 1 and December 31, 1890, inclusive, and specified different sums.

The defendants demurred to the complaint, as not stating facts sufficient constitute a cause of action. The court sustained the demurrer, and, the attorney for the United States saying that he could not amend the complaint, judgment was rendered for the defendants. The United States appealed to the supreme court of the territory, which affirmed the judgment. 10 Utah, 184, 37 Pac. 263. The United States sued out this writ of error.

Asst. Atty. Gen. Dodge, for the United States.

Arthur Brown, for appellees.

Mr. Justice GRAY, after stating the case, delivered the opinion of the court.