Opinion
[Copyrighted Material Omitted] Grimstad & Brown, of Billings, Mont., and Gunn, Rasch & Hall and Hugh Thomas Carter, all of Helena, Mont., for plaintiffs in error.
George F. Shelton, U.S. Atty., of Butte, Mont., for defendant in error.
Before GILBERT and HUNT, Circuit Judges, and WOLVERTON, District judge.
GILBERT, Circuit Judge (after stating the facts as above).
The merits of the controversy depend upon the construction of the clause of the contract which is quoted above. The court below construed it to mean that for the rental of $31,950 per annum the defendants could graze any number of cattle up to the equivalent of 9,000 head throughout each year taken separately, and that for any excess of that number the defendants were to pay $4.50 per head grazed during the equivalent of a year. Said the court:
'The language of the lease, that this $4.50 per head is payable for 'any excess over and above such maximum number,' does not necessarily import only cattle over and above 11,500 head, the last antecedent and maximum eo nomine, but consistent with the writing and construction can be and is taken to import cattle over and above 9,000 head, the first antecedent and also a maximum, although not in terms so characterized. Nine thousand head are the maximum for the year as a whole, the principal thing, and the 11,500 are the maximum at any time (and for such time as will serve to accomplish the 9,000 maximum), an incidental thing.'
We agree with that construction of the contract. It is obvious that there was error in one phrase of the instrument, but, notwithstanding the error, the true intention of the contracting parties is not difficult to ascertain. It was clearly not their intention that there should be any free grazing, and the construction contended for by the defendants would result in free grazing for all cattle in excess of 9,000 and under 11,500.
The intention of the contracting parties is made clear by referring to the written offer which the defendants submitted preliminary to the contract, and which may be properly taken into consideration in construing the instrument. United States v. Bethlehem Steel Co., 205 U.S. 105, 118, 27 Sup.Ct. 450, 51 L.Ed. 731; Northwestern Terra Cotta Co. v. Caldwell, 234 F. 491, 499, 148 C.C.A. 257. In that proposal the defendants wrote:
'The minimum amount to be paid per annum, in semiannual payments in advance, $31,950. * * * The number of cattle to be grazed on this district to be 9,000 head, at the rate of $3.55 per head per annum, and that any cattle grazed on this district in excess of 9,000 head shall be paid for at the same rates per head per annum.'
The defendants contend that the provision for the payment of $4.50 per head was intended either as a penalty or as liquidated damages for violation of the contract in grazing an excess number of cattle on the leased premises, that in providing for such payment no provision is made about the average number of cattle, and that the true construction is that for all cattle placed on the leased land in excess of the maximum number the lessee should pay $4.50 per head, even if the cattle were on the land but for a single day, a rate so disproportionate to the value of the grazing privilege that it must be considered as a penalty, and it is argued that it is immaterial whether the $4.50 rate be regarded as a penalty or as liquidated damages, in view of sections 5054 and 5055 of the Revised Codes of Montana of 1907. The contention cannot be sustained. The provision for the payment of $4.50 per head is neither in the nature of a penalty nor liquidated damages. It is a stipulated sum to be paid for a specified privilege.
The contract does not bind the defendants to pasture no more cattle per annum than the lowest number therein specified. The plaintiff does not sue for breach of a contract. There is no allegation in the complaint upon which either a penalty or liquidated damages can be predicated. There was in fact no breach of contract. The agreement left the defendants at liberty to pasture as many cattle on the lands as they might see fit to place thereon, up to the limit of 11,500, but it provided that for cattle in excess of 9,000 and for the exercise of such privilege they should pay an increased rate of pasturage per head. The rate was increased doubtless on the theory that the presence of such excess cattle would result in some injury to the pasture, but that does not mean that the rate so fixed is compensation for damage. It was but payment for that which the plaintiff parted with and the defendants received.
In view of the construction which we have given to the contract, it becomes unnecessary to discuss the assignment that the court erred in holding that the Surety Company was liable on the bond for the excess number of cattle grazed. Nor do we find that the court below erred in construing the contract to authorize the averaging of the cattle for each year separately, instead of for a two-year period. The contract was clearly divisible into two year periods. The rent was apportioned to each year, and was payable for each year, and the conclusion is reasonable that the provision in regard to extra payment for excess cattle applied to each year.
It is contended that, as the contract expressly limits the number of cattle which may be grazed on the leased premises, the grazing thereon of any excess number was without the consent of the Crow Tribe of Indians, and in violation of section 2117 of the Revised Statutes (Comp. St. Sec. 4107), and that the agreement to pay for the excess cattle could impose no liability; it being an agreement to pay for violating the statute by placing cattle on the reservation without the consent of the tribe. But it does not appear from the record that any provision of the lease was inserted therein without authority from the Crow Indians. The complaint alleges and the answer admits that the lease was made in pursuance of a resolution of the Crow Tribal Council, and that the same was approved by the Secretary of the Interior. The lease itself recites that it was made on behalf of the Crow Tribe of Indians, under and pursuant to the action of the council of the tribe. The leased lands were subject to lease, under section 3 of the Act of February 28, 1891, 26 Stat. 795 (Comp. St. Sec. 4218). The lands had been 'bought and paid for' within the meaning of that statute. Strawberry Valley Cattle Co. v. Chipman, 13 Utah, 454, 45 P. 348. In Maricopa & Phoenix Railroad v. Arizona, 156 U.S. 347, 15 Sup.Ct. 391, 39 L.Ed. 447, the court, answering the contention that it did not appear by the record that the consent of the Indians had been given to a grant of a right of way over their land, said:
'In the first place, as the company has taken the rights granted by the statute, the legal presumption of duty performed (omnia rite, etc.) requires us to assume that the consent was given in accordance with law. And again, the company, having assumed and exercised rights which it could possess only by virtue of such consent, cannot be permitted to aver its own wrongdoing, trespassing, and violation of the statute in order to escape its just share of the burden of taxation.'
In Cincinnati & Tex. Pac. Ry. v. Rankin, 241 U.S. 319, 327, 36 Sup.Ct. 555, 558 (60 L.Ed. 1022, L.R.A. 1917A, 265), the court said:
'The law 'presumes that every man, in his private and official character, does his duty, until the contrary is proved. It will presume that all things are rightly done, unless the circumstances of the case overturn this presumption.''
It is contended that it was error to hold the defendant Kirby liable for cattle belonging to certain cattle companies which were grazed on the leased premises by permission of McDaniels, and without Kirby's knowledge or consent. The evidence leads clearly to the inference that, notwithstanding that in the spring of 1916 Kirby may have been ignorant of the arrangement made by McDaniels to pasture the cattle of others on the leased lands, he acquired such knowledge before the end of that year, and that he was aware of McDaniels' acts in so pasturing other cattle during the second year of the lease, the year in which the court below found liability to have been incurred to pay the rental of $4.50 per head. There is no evidence of ouster of Kirby by McDaniels, and, even if there were, their joint liability under the lease would not be affected thereby. Kendall v. Carland, 5 Cush. (Mass.) 74; Goshorn v. Steward, 15 W.Va. 657; Glenn v. Dungey, 4 Exch. 61.
Error is assigned to the ruling of the court below in allowing as costs the mileage of witnesses who attended the trial from without the state, and from points more than 100 miles from where the court was held. The question of practice raised by the assignment is one upon which the courts have differed. In the First circuit it is held that a witness is entitled to the whole mileage without limit to the 100 miles, whether or not he resides within the jurisdiction. United States v. Sanborn (C.C.) 28 F. 302; The City of Augusta, 80 F. 297, 25 C.C.A. 430; The Governor Ames, 187 F. 40, 109 C.C.A. 94; Eastern S.S. Corp. v. Great Lakes Dredge & D. Co., 256 F. 497, 168 C.C.A. 3. The rule is to the contrary in the Second circuit. Buffalo Ins. Co. v. Providence & S.S.S. Co. (C.C.) 29 F. 237; The Syracuse (C.C.) 36 F. 830. Also in the Third circuit. The Progresso (D.C.) 48 F. 239. And in the Fourth circuit. Sloss Iron & Steel Co. v. South Carolina & G.R. Co. (C.C.) 75 F. 106. Also in the Sixth circuit. The Vernon (D.C.) 36 F. 113; Burrow v. Kansas City, etc., R. Co. (C.C.) 54 F. 278. Also in the Seventh circuit. Eastman v. Sherry (C.C.) 37 F. 844. Also in the Eighth circuit. Pinson v. Railroad Co. (C.C.) 54 F. 464; Griggsby Const. Co. v. Louisiana & N.W.R. Co. (C.C.) 123 F. 751; United States v. Green (D.C.) 196 F. 255. In the Ninth circuit, in Hunter v. Russell (C.C.) 29 F. 964, Judge Knowles followed the rule of the First circuit, but in Hanchett v. Humphrey (C.C.) 93 F. 895, Judge Hawley ruled otherwise, and held that mileage is taxable for a witness from any point with-in the district and for a distance of 100 miles, if the witness came from a point at a greater distance, and without the district. In United States v. Southern Pac. Co. (C.C.) 172 F. 909, Judge Bean followed the ruling in Hanchett v. Humphrey. In United States v. Southern Pac. Co. (D.C.) 230 F. 270, Judge Trippet held likewise. In neither of the last two cases was mention made of the decision of this court in Jesse D. Carr Land & Live Stock Co. v. United States, 118 F. 821, 55 C.C.A. 433, in which Judge De Haven, speaking for the court said:
'The appellant's motion to strike from the bill of costs the amount claimed by the appellee for mileage and fees of certain witnesses, who came from without the state and more than 100 miles from the place of trial, was properly denied'-- citing United States v. Sanborn (C.C.) 28 F. 299.
Upon that decision the plaintiff in the present suit relies. We are of the opinion that the remarks of the court in that case should not be held decisive of the question here involved. The ruling was made, not on a motion to retax the costs, but on a motion to strike out the costs taxed as mileage and for expenses of witnesses. It does not appear that the question whether or not the witnesses were entitled to mileage for more than 100 miles was presented or discussed. Judge Hawley participated in the decision, notwithstanding his prior ruling in Hanchett
Page 397.
v. Humphrey. We think it should not stand in the way of adopting the rule which is sustained by the weight of authority, as well as by the weight of reason, that mileage is taxable in the federal court only for the distance that could be reached by a subpoena, and we so hold.
But we think there was no abuse of discretion in taxing as costs the mileage and fees of witnesses who did not in fact testify, and in taxing as costs the fees and expenses of the marshal in serving subpoenas upon them. It is shown by the bill of exceptions that the witnesses were subpoenaed in good faith, and that their testimony was deemed material to the issues involved. Clark v. American Dock & Imp. Co. (C.C.) 25 F. 641; Burrow v. Kansas City, Ft. S. & M.R. Co. (C.C.) 54 F. 278.
The cause is remanded to the court below, with instructions to retax the costs of the mileage of witnesses in accordance with the foregoing opinion. In other respects the judgment is affirmed.