United States. So much of that section as is relevant to this case is in these words: "Every person who makes or causes to be made, or presents or causes to be presented, for payment or approval, to or by any person or officer in the civil, military, or naval service of the United States, any claim upon or against the government of the United States, or any department or officer thereof, knowing such claim to be false, fictitious or fraudulent, or who, for the purpose of obtaining or aiding to obtain the payment or approval of such claim, makes, uses, or causes to be made or used, any false bill, receipt, voucher, roll, account, claim, certificate, affidavit or deposition, knowing the same to contain any fraudulent or fictitious statement or en y every person so offending in any of the matters set forth in this section shall be imprisoned at hard labor for not less than one nor more than five years, or fined not less than one thousand nor more than five thousand dollars."

1. Although each count of the indictment charged a distinct offense, it was not error to embrace both offenses in one indictment, in separate counts. Such joinder, where two or more acts or transactions are connected together, or are of the same class of crimes or offenses, is expressly provided for in section 1024 of the Revised Statutes. The subject of the joinder of distinct offenses in one indictment against the same person was fully examined in Pointer v. U. S., 151 U. S. 396, 400, 14 Sup. Ct. 410.

2. The paper presented by the defendant to the third auditor of the treasury of the United States in support of his claim against the government, purporting to be the affidavit of Perry Ingraham and Mary E. Ingraham, certified by Daniel H. Remington, as a justice of the peace in Rhode Island, was admissible in evidence without formal proof that Remington had been duly commissioned and had duly qualified as a justice of the peace. Even if Remington had not been properly commissioned, or had not qualified so as to entitle him, in law, to discharge the func tions of a justice of the peace, the paper presented by the defendant to the third auditor of the treasury for the purpose of obtaining the payment or approval of his claim, being in the form of an affidavit, must, for all the purposes of this prosecution, be taken to be an affidavit. If he knew that the statement in that paper, described in the indictment, was fraudulent or fictitious, he was not the less guilty under the second count because of the fact, if such was the fact, that Remington had not been duly commissioned as a justice of the peace, and was not, for that reason, entitled to administer the oath certified by him. The essence of the offense charged in the second count was the use by the defendant of a document or writing known by him to contain a fraudulent or fictitious statement made to secure the payment or approval of his claim. He

is estopped to deny that the document or writing so used was not what it purports to be, namely, an affidavit.

Besides, the contention of the accused could not be sustained even if the word "affidavit," in section 5438, were held to imply a declaration or affirmation in writing, sworn to or affirmed before some officer duly appointed, and having legal authority to administer oaths or to take affirmations. It is not suggested, nor could it be said, that Remington, if duly commissioned or appointed a justice of the peace, was without such authority. Pub. St. R. I. c. 23, § 9. But, having acted in that capacity, the presumption will be indulged, nothing to the contrary appearing, that he was duly commissioned or appointed to the office whose functions he exercised. It was not necessary, in the first instance, in order to prove the offense charged, to produce his commission, or introduce other official evidence of his appointment. Such is the general rule. It is one of public convenience, and of long standing. Berryman v. Wise, 4 Term R. 366; 1 Greenl. Ev. § 92; 1 Bish. Cr. Proc. § 1130, and authorities cited; 1 Whart. Cr. Ev. § 833, and authorities cited; Rex v. Roberts, 14 Cox, Cr. Cas. 101, 103; Rex v. Howard, 1 Moody & R. 187; Rex v. Verelst, 3 Camp. 433.

What has been said meets all the points suggested in the brief of counsel for the plaintiff in error.

WRIT OF PROHIBITION-MANDAMUS TO JUDGE. 1. Prohibition will not lie to prevent a circuit judge from proceeding on the petition of receivers of a railway company asking authority to enter into an agreement for the partial readjustment of the affairs of the company, and from carrying out the decree rendered.

2. Mandamus will not lie to compel a circuit judge to decide in a particular way an ap plication by receivers of a railway company for authority to enter into an agreement for the partial readjustment of the affairs of the company.

3. A decree made by the circuit court on a summary application by receivers of a railway company, after proper notice to the parties interested, will not be interfered with by manda

mus.

Railroad and Philadelphia & Reading Coal & Iron Companies were appointed February 20, 1893, by the circuit court for the Eastern district of Pennsylvania, upon a bill for foreclosure filed by a holder of third preference income bonds of those companies.

Leave was subsequently granted the receivers to issue certificates for the purpose of paying wages and other preferred claims. The receivers and the railroad company filed a petition September 25, 1894, for authority to enter into an agreement for the partial readjustment of the affairs of the Philadelphia & Reading Railroad and Coal & Iron Companies, and to make the payments therein provided, if the plan were carried into effect. The circuit court ordered that the petition should be heard on October 15, 1894, at 10 o'clock a. m., and that notice of the hearing should be given by advertisement in newspapers published in New York, Philadelphia, and in the London Times. At the time appointed the hearing was begun, but could not be completed by reason of the pressure of trial business, and the court suggested that, to avoid delay, and in relief of counsel, some of whom were not residents of Philadelphia, the petition might be referred to a special master, and that the arguments in the master's office might be stenographically reported, and would be considered on the coming in of the master's report as if they had been made in court. This suggestion was accepted, and thereupon the order of reference was made, and the master subsequently filed his report, including the arguments as taken down at length. Application was made for a further hearing, which was denied, the report of the master confirmed, and the order prayed for in the petition entered.

The report of the master stated that the companies "have outstanding prior general mortgage bonds, amounting to $44,491,188.77, bearing four per cent. interest, maturing semiannually, January and July 1st, which for the past eighteen months is in arrear and unpaid. The receivers, under an order made July 6, 1893, authorizing them to issue receivers' certificates, have issued them to the amount of $3,640,000. The Philadelphia and Reading Railroad Company also owe other general, well-secured indebtedness to the amount of $3,843,000, and further indebtedness, with interest, aggregating $7,533,000, for necessary equipment, for which a large part of the value thereof has been paid, leaving a valuable equity of the company therein over the said debt therefor. The receivers, upon the payment of the said secured general indebtedness, will have $10,000,000 of 5 per cent. collateral trust gold bonds of the Philadelphia and Reading Railroad Company, secured by stocks and bonds of its as sociated companies, which are a valuable and necessary part of its system, to dispose of for payment of the said classes of indebtedness, which, by reason of priority of

liens, or value of securities pledged therefor, are entitled to a preference in the disposition of the proceeds of the said collateral trust bonds, over other indebtedness of the company. Some of the said general mortgage bondholders have combined to enforce foreclosure of their mortgage under due legal proceedings."

The report then set forth the proposed plan of readjustment, which, in brief, provided for the purchase of the overdue and maturing coupons of the general mortgage bonds of the Philadelphia & Reading Railroad Company and an extension of the time of payment for 10 years from the date of each purchase, and for the sale of $10,000,0005 per cent. collateral trust bonds to the stockholders and junior bondholders of the company at par. Such stockholders and bondholders as were unable or unwilling to purchase the bonds at par were given the priv ilege of making a cash contribution by way of a gift of $3,000,000, and in that event a syndicate had been formed to take and pay for the bonds the sum of $7,000,000. In case the plan should become effective, and only upon that condition, the receivers were to pay the purchasers of the coupons, who were to extend them for 10 years, a commission of 22 per cent., and to the purchasers of the collateral trust bonds a like commission of 21⁄2 per cent. If the plan were carried into effect, the company would obtain an extension upon its general mortgage bonds of 10 years, and sell $10,000,000 of its collateral trust bonds at par, for whether the stockholders and junior security holders purchased and paid for the bonds themselves at par, or the syndicate should take them at 70 per cent., and the stockholders and junior bondholders paid the remaining 30 per cent. as a cash donation, the result would be the same.

The plan also provided for the creation of a voting trust, whereby the right of the stockholders to elect six managers and the president under the charter of the company was distributed among the general mortgage bondholders, the income bondholders, and the stockholders, under a system of registration of the bonds.

The readjustment agreement was to be taken in connection with a previous agreement between the general mortgage bondholders in respect of foreclosure, and it is averred that, since the order complained of was entered, sufficient of the general mortgage bonds have been deposited to enable foreclosure to go forward if the readjustment plan should fail, and reorganization to be reached in that way.

The master said: "In any event, whether of success of the scheme or of foreclosure, because of the priority of the lien of the coupons and interest of the general mortgage bonds, and the receivers' certificates and the salvage of the securities pledged for the secured indebtedness and of the equipment,

*400

the debts which are proposed to be paid out of the said moneys to be raised would be payable out of the proceeds of the collateral trust bonds and their security, in preference to the income mortgage bondholders, unsecured general indebtedness, and stockholders. The coupons of the general mortgage bonds carry 6 per cent. interest from their maturity. Too small a part of those bonds are registered to warrant a discrimination against the small amount of interest thereon, which will not carry interest from maturity. The counsel for the receivers state that the equipment and the other well-secured obligations proposed to be paid also cary 6 per cent. interest. The collateral trust bonds proposed to be sold carry 5 per cent. interest. No substantial offer of better prices for the assets proposed to be sold in this plan was made, much less in the mode required by courts from parties opposing the consummation of judicial sales in securi. ty for a substantial better price."

The master found that the commissions provided for were not unreasonable; that it was not probable that under a foreclosure the collateral trust bonds or their security would produce more; that it was the duty of the receivers to pay or provide for the interest upon the general mortgage bonds to avoid foreclosure; that an investigation of the causes of the fact that the receivers had not the means to pay the present default upon the general mortgage interest, or the other pressing indebtedness, would not aid in the consideration of the present duty of the court and receivers; that the action asked of the court was entirely for the administration of certain assets in the receivers' hands for the payment of pressing debts, and the authority to the receivers and company was to be granted contingently upon the subsequent approval of the security holders and stockholders, all the parties in interest; that under the petition there was no question of rival plans of organization; that there was no other scheme pending to avoid the impending foreclosure; and that the receivers were not acting or asking for authority otherwise than with strict impartiality to the several interests involved, while the refusal of the prayer of the petition "would aid its opponents in depriving the whole body of the rest of the security holders and stockholders of the opportunity of approving and consummating the scheme." He concluded that the granting of the prayer of the petition would not probably be misunderstood by the parties in interest, and, even if it were, that fact, or that they would thereby authorize foreclosure, if the plan proved unsuccessful, should not prevent the action of the court otherwise proper; that, although the plan disposed of a large amount of the assets, this was not unadvisable, as it also disposed of a commercially equal amount of indebtedness, which would in any event absorb the proceeds of those, or an equal

amount of other assets; that any lien not before the court or charter rights would not be affected without the consent of those interested, "unless of a very small minority, whose rights would be necessarily entirely protected in the usual manner in such cases"; "that the provisions for commissions are only an element of the net price to be obtained for the assets to be disposed of, and do not impair the obligation of the income mortgages;" that certain provisions of the plan for a voting trust were not invalid, and furnished no ground of objection to the granting of the prayer; and that a full accounting or statement of all the affairs of the company was not necessary for the proper consideration of the questions involved.

The circuit court, in granting the application and entering the order prayed for, observed: "The order now to be made does not approve the proposed plan of reorganization, nor is either approval or disapproval thereof to be implied from it. The question of the wisdom and expediency of adopting any such scheme is for solution and determination by the persons interested, and no attempt to coerce their judgment or control their action should be made either by the court or the receivers. But nothing of that sort is involved in the authority now asked and given. It imposes no constraint, but leaves those who have the right to accept or to reject the plan referred to wholly free to do the one or the other, as they may see fit. It sanctions the raising of money by rightful means upon reasonable terms and for proper objects, and it is not a valid ground of objection to it that it also renders feasible, in case of due acceptance, the only reorganization project which is known to exist. The receivers should not enlist on either side in conflicts amongst those interested in the property they have in charge; but the neutrality which it is their duty to observe is not departed from by facilitating any plan which may be proposed for the general benefit, provided that to all alike, and with regard to every plan advanced in good faith, the same facilities be indifferently accorded; and the court, whilst it will not pass upon the comparative merits of rival schemes of reorganization, will regard with satisfaction any and every legitimate effort to termi-, nate this receivership."

The petitioner subsequently made applica-tion to the circuit court to set aside the decretal order upon the receivers' and companies' petition, and for leave to file a demurrer, plea, and answer to that petition; and that, if the demurrer or plea should be overruled, a reference be had, and evidence adduced for and against the proposed action, and fo a stay in the meantime; and. in the alternative, that the decretal order be opened, with leave to petitioner to file nunc pro tune such demurrer, plea, or answer, and with leave to file nunc pro tunc exceptions to the master's report, upon the ground that such proceedings had been had and decree made without regard to

the rules and regulations of practice; and for general relief,-which application the circuit Court denied.

Petitioner thereupon applied to this court for leave to file a petition for a writ of prohibition to prohibit the circuit judge from further proceeding upon the petition of the receivers, and from enforcing or carrying out the decree thereunder, and for a writ of mandamus directing the circuit judge to cause securities deposited under the proposed plan to be returned to their owners, and to restore the parties to their original positions, or to vacate the decree, and require the parties in interest to be brought in, and thereafter to proceed according to the rules and forms of law for such cases made and provided.

Nathan Bijur, for the motion. Jr., and Sam'l Dickson, opposed.

Thos. Hart,

Mr. Chief Justice FULLER, after stating the facts in the foregoing language, delivered the opinion of the court.

Without discussing the various matters urged upon our attention by counsel for the petitioner, it is sufficient to say that we are of opinion that the leave asked for cannot be granted.

1. Where it appears that the court whose action is sought to be prohibited has clearly no jurisdiction of the cause originally, or of some collateral matter arising therein, a party who has objected to the jurisdiction at the outset, and has no other remedy, is entitled to a writ of prohibition as a matter of right. But where there is another legal remedy by appeal or otherwise, or where the question of the jurisdiction of the court is doubtful, or depends on facts which are not made matter of record, or where the application is made by a stranger, the granting or refusal of the writ is discretionary. Nor is the granting of the writ obligatory where the case has gone to sentence, and the want of jurisdiction does not appear upon the face of the proceedings. Smith v. Whitney, 116 U. S. 167, 173, 6 Sup. Ct. 570; In re Cooper, 143 U. S. 472, 495, 12 Sup. Ct. 453. Tested by these rules, we are clear that a proper case is not made for awarding the writ of prohibition.

2. The writ of mandamus cannot be issued to compel the court below to decide a matter before it in a particular way, or to review its judicial action had in the exercise of legiti mate jurisdiction. The writ cannot be used to perform the office of an appeal or writ of error, even if no appeal or writ of error is given by law. American Const. Co. v. Jacksonville Ry. Co., 148 U. S. 372, 379, 13 Sup. Ct. 758.

The circuit court has proceeded to judgment In the premises, and we cannot revise and reverse its decision by resort to this writ in the manner proposed; nor can we command It to adjudicate upon the rights of parties not before it, by directing it to cause securi

ties which may have been deposited to be returned to their owners, and to restore the parties to their original positions. Still less can we direct the hearing of further argument be cause counsel may consider that the opportu nity for the expression of his views and the presentation of objections has not been as ample as in his opinion should have been afforded. The mere fact that in the adminis tration of the assets of an insolvent corporation in the custody of receivers summary proceedings are resorted to does not in its. If affect the jurisdiction of the circuit court as having proceeded in excess of its powers; and, where notice has been given, and hearing had, the result cannot properly be interfered with by mandamus. Ex parte Parsons, 150 U. S. 150, 14 Sup. Ct. 50.

We perceive no ground for the extraordi nary interposition of this court by the issue of either of the writs applied for. Leave denied.

(155 U. S. 389)

UNITED STATES v. GUNNISON.
(December 17, 1894.)
No. 484.

SHIPPING COMMISSIONERS-CLERK HIRE-Approv
AL BY SECRETARY OF TREASURY.

Under Act June 26, 1884 (23 Stat. p. 59, § 27), providing that the "number and compensation of the clerks" employed by any shipping commissioner shall be approved by the secre tary of the treasury, and Act June 19, 1886 (24 Stat. p. 79, § 1), providing that the latter shall "allow and pay compensation" to such clerks, a shipping commissioner cannot recov er from the government the amount paid by him for clerk hire after he was formally notified by the secretary that his compensation would be limited to a certain amount per month, where it appears that upon the presentation of his vouchers containing the claim for clerk hire they were approved only to the amount so limited.

Appeal from Court of Claims.

Action by Van B. Gunnison against the United States to recover certain fees and clerk hire claimed by him as shipping comPlaintiff missioner for the port of Mobile. had judgment, and defendant appeals. Reversed.

The

The appellee sued in the court below to recover certain fees and clerk hire which he claimed to be due for services rendered as shipping commissioner at the port of Mobile from June 18, 1889, to February, 1890. claim was for $1,607 and costs. There was judgment below in his favor for $75, being $25 a month for clerk hire during the months of December, 1889, and January and February, 1890. From this judgment the United States appealed.

Asst. Atty. Gen. Dodge, for the United States. George A. King, for appellee.

Mr. Justice WHITE delivered the opinion of the court.

The findings of fact in the court below were as follows:

"(1) The claimant was a shipping commiscloner at the port of Mobile, Ala.

"During the term of his service he made a detailed report monthly to the secretary of the treasury of his services and the fees provided by law, with a full, exact, and Itemized account of receipts and expenditures.

"For the months of December, 1889, and January and February, 1890, his returns were as follows:

Fees provided by law. December, 1889, paid salary of clerk, $25

$262 75

January, 1890, paid salary of clerk, $25

.....

311 75

284 50

February, 1890, paid salary of clerk, $25 "On each of said accounts the secretary made and signed the following indorsement: "Approved in the sum of one hundred dollars ($100), and respectfully referred to the first auditor, who will please state an account in favor of the U. S. shipping commissioner for the amount found due, payable from the appropriation for "Salaries, shipping service."

""The services enumerated within appear to have been necessarily rendered.'

"The account was stated by the auditor, admitted and certified by the comptroller, and paid to claimant in accordance therewith, except that the services of the clerk were wholly omitted from the account.

"(2) Previously to that time the secretary of the treasury had fixed the compensation of said claimant not to exceed the sum of $100 a month, by a letter addressed to him, as follows:

66

"Washington, D. C., November 23, 1889. "U. S. Shipping Commissioner, Mobile, Ala. -Sir: From and after the 1st proximo the compensation allowed you under section 1 of the act of June 19, 1886, will not exceed the sum of one hundred dollars ($100) in any one month. If the services performed by you in any month do not warrant the payment of one hundred dollars under the existing regulations, your compensation for that month will remain as heretofore fixed. No pay additional to the monthly compensation herein mentioned will be allowed for your services as shipping commissioner. "Respectfully yours,

C. S. Fairchild, Secretary.'" The law governing the compensation of shipping commissioners is found in the acts of June 26, 1884 (23 Stat. p. 59, § 27), and of June 19, 1886 (24 Stat. p. 79, § 1). By the first of these statutes (that of June, 1884) t is provided that:

**Shipping commissioners shall monthly render a full, exact, and itemized account of their receipts and expenditures to the secretary of the treasury, who shall determine their compensation, and shall, from time to time determine the number and compensation of the clerks appointed by such com

missioner, with the approval of the secreta. ry of the treasury, subject to the limitations now fixed by law."

And also that:

"All fees of shipping commissioners shall be paid into the treasury of the United States, and shall constitute a fund which shall be used under the direction of the secre tary of the treasury to pay the compensation of said commissioners and their clerks, and such other expenses as he may find necessary to insure the proper administration of their duties."

By the second statute (June 19, 1886) it is provided that:

"Shipping commissioners who are paid wholly or partly by fees shall make a detailed report of such services and the fees provided by law to the secretary of the treasury, under such regulations as that officer may prescribe; and the secretary of the treasury shall allow and pay from any money in the treasury, not otherwise appropriated. said officers such compensation for said services as each would have received prior to the passage of this act; also such compensation to clerks of shipping commissioners as would have been paid them had this act not passed: provided, that such services have, in the opinion of the secretary of the treasury, been necessarily rendered."

We think it clear that the right of a shipping commissioner to employ clerks under these provisions depends on the sanction of the secretary of the treasury. Indeed, the act of 1884 expressly so says. The act of 1886, while making some changes as to the method of compensating the commissioners, specifically provides that the clerks of such commissioners shall receive such compensation as would have been paid to them if that act had not passed. If the last act did not repeal the act of 1884, the plaintiff could not recover without the indorsement of the secretary of the treasury, since that act gives him the right to determine the number and the compensation of clerks to be appointed by the commissioner. If the act of 1884 was repealed by the act of 1886, the plaintiff was equally without the right to recover clerk hire, because under the act of 1886 the amount of compensation to be paid to the commissioner or his clerk depends altogether on the judgment of the secretary of the treasury, who is required by that act to certify that such services appeared to have been necessarily rendered.

The secretary formally notified the shipping commissioner in November, 1889, previous to the month for which clerk hire was claimed, that his compensation would be limited to $100 per month, and that no additional compensation would be allowed. When the vouchers were presented, including the items of clerk hire, the secretary approved them only for $100 per month. This al lowance necessarily excluded the clerk hire The court below based its ruling upon the