Davies v. United States

On the Proofs. A commissioner's account is appproved by the Circuit Court, but disallowed in part by the accounting officers. It appears that he charged for services which clerks may perform but which commissioners are not required to: for entries as to subpoenas where the warrants were returned not executed; for daily pay in criminal cases, as to which the accounting officers requested an explanation and none was given; for new subpoenas, where a pending case was adjourned from day to day; for additional warrants on such adjournments; for separate recognizances for witnesses, where all might be joined in one; for process returned, where defendants were not held; and for copies, when the original was required. I. A commissioner is entitled to only such fees as are prescribed by statute law, and only for service which he is required or authorized by some law to render. II. Although the Revised Statutes (§ 847) give to commissioners “ the same compensation as is allowed to clerics for like services,” they do not authorize them to perform any act not otherwise required or authorized by law, III. When a warrant and supoena are issued and tlie warrant is returned not executed (nothing being done with the subpoena), no entry about the subpocena is required, and no fee canbe charged therefor. IV. When a commissioner has charged daily pay for an unusual number of days in hearing criminal cases, and after a request by the First Comptroller for an explanation fails to explain the charge either to him or to the court, it may be presumed to be an overcharge. V.When a case pending before a commissioner is adjourned from day to day, a witness is bound by the original subpoena to remain in attendance, and the commissioner can not charge for additional subpoenas. VI.When an examination before a commissioner is adjourned from day to day, the marshal is authorized by the original warrant of arrest to retain the defendant in custody. For that purpose no additional warrant is required, and none can be charged for. VII.When by a rule of court a commissioner was forbidden to issue warrants unless the district attorney authorized tho prosecutions in writing upon the complaint, and his indorsement was “ the commissioner will issue a warrant on the within affidavit if in his opinion there is reasonable ground to believe the accused guilty,” the indorsement was a substantial compliance with the rule. VIII.Separate recognizances for witnesses to appear at court in the same case are not required. All may be joined in one. IX.A commissioner is not required by the Revised Statutes (§ 1014) . to return copies of process when defendants are not held to appear for trial, nor to send copies when-the original is required.

The Reporters’ statement of the case: The following are the facts as found by the court: I. The claimant, Daniel D. Davies, was a commissioner of the circuit court of the United States for the western district of North Carolina from the 1st day of July, 1880, to the 31st day of December, 1886. II. His accounts for services as commissioner, verified by his oath, were presented to said court in the presence of the United States district attorney, and an order approving the same was duly entered of record. The accounts thus approved were presented to the accounting officers of the Treasury for payment. Part was paid, but payment of the items presented in Finding III was refused. III. (1) For twelve capias subpoenas, issued in eleven different cases (two being issued in one case), at 25 cents each. $3.00 (2) For entering return to subpoenas in cases where the warrant was returned not executed.... 6.00 (3) For entering return to subpoenas in cases where the warrant was returned not executed and no returns made on the subpoenas, fl. 95 (4) Claimant charged for two days’ services, $5 each, in hearing and deciding- on one criminal case. He was allowed and paid at the Treasury for one day’s service only. No reason was given for occupying two days. The First Comptroller requested the claimant in writing to give an explanation, but none was given and none was given in court. 5.00 (5) For drawing recognizances of witnesses on behalf of the United States to appear on a future day before the commissioner where the examination was adjourned from day to day.. 14.80 (6) For drawing reports in duplicate of the attendance of witnesses on behalf of the United States with orders for the marshal to pay... 95.70 These reports contain but two folios each, but the charge is for four folios each. Two folios each have been paid for at the Treasury. This item is for the additional two folios. (7) For issuing warrants to commit defendants to jail for further-examination in default of bail, entering return of marshal, and filing said warrants, at $1.25 each .. $111.25 These were temporary warrants to commit the defendants pending a hearing on adjournments from day to day. (8) For drawing complaints, issuing warrants, subpeonas, and • other services in the arrest and examination of parties for violation of the internal-revenue laws where the warrants were issued on the approval of the district attorney. $2,068.10 These charges were disallowed at the Treasury Department, because it was supposed the proceedings were not authorized by rule 3 of the district court of North Carolina. This rule was adopted by the court at the request of the Commissioner of Internal Eevenue and the Attorney-General, and is as follows: “ Hereafter no warrant shall be issued by a United States commissioner for the arrest of a person charged with having-violated any of the revenue laws of the United States upon the complaint of an unofficial person or a deputy marshal, unless the collector of customs, or of internal revenue, or a deputy collector, or a Treasury or revenue agent, shall have made and attached an affidavit to such complaint, setting forth that the affiant has carefully inquired into the alleged offense; that it is such an offense as should be prosecuted, and, in his opinion, there is probable cause for the arrest of the accused, and that he requests tha,t warrant for the arrest of the accused be issued: Provided, That the district attorney is nevertheless authorized to institute prosecutions under the internal-revenue laws in such cases as be may approve in writing over his official signature, indorsed upon or accompanying the affidavit or complaint of any individual first duly sworn to before a United States commissioner, aud charging any defendant with a violation of said revenue laws.” The warrants were issued after the district attorney had written and signed the following indorsements on the complaints : “The commissioner will issue a warrant on the within affidavit, if he is satisfied upon examination, based on the oath of the witness, there is probable cause for prosecuting the defendant. “ Or the commissioner will issue a warrant on the within affidavit if, in his opinion, there is reasonable ground to believe the accused guilty.” What specific fees are embraced in the foregoing item (8) does not fully appear; but the counsel for the Government files with the court a written statement to the effect that there are no legal objections to any of them, except the general objection above set forth. (9) For drawing bonds of defendants where held for a continuance, or for court, and acknowledgment of sureties. $10.25 In certain cases before the commissioner he has charged for taking two bonds of a defendant for appearance before himself. He has been paid for one bond in each case. The above item is for the additional bond. No reason for taking two bonds appears. (10) For issuing warrants of commitment to jail, entering, returning, and filing said writ, where defendants were held for the United States circuit court, $1.25 each. $3.75 This item is composed of charges for warrants of final commitments in default of bail to appear at court, and for bail bonds to appear at the same term of court, both made on the same day. The claimant has been paid one fee at the Treasury, and this item is for the others. (11) For drawing recognizances of witnesses on behalf of the United States for their appearance in the United States circuit court- $23.70 This claim was rejected by the First Comptroller, because he held that all the witnesses in one case should sign one bond, unless in particular cases it should be necessary to have separate bonds, and then such necessity should be shown. No such necessity appears, other than in the fact that the charge is made. The Comptroller allowed and the claimant has been paid for drawing one bond in each case, two folios, 30 cents. (12) For making copies of procesa to be returned into the clerk’s office of the United States Circuit Court in the various criminal cases heard and examined. $161. 40- These charges are for copies of process sent to court in cases where the defendants were discharged, or in cases where the original process, not copies, was required by law to be sent to court. Upon the foregoing findings of facts the court decided as conclusions of law: (1) A commissioner is entitled to only such fees as are prescribed by statute law, and only for service which he is required or authorized by some law to render. (2) Although section 847 of the Revised Statutes gives to commissioners u the same compensation as is allowed to clerks for like services,” it does not authorize him to perform any act not otherwise required or authorized by law. (3) When a warrant and subpoena are issued, and the warrant is returned not executed (nothing being done with the subpoena), no further entry about the subpoena is required, and no fee can be properly charged therefor. (4) When a commissioner has charged daily pay for an unusual number of days in hearing criminal cases, and after a written request by the First Comptroller for an explanation of it, fails to explain the charge, either to him or the court, it may be presumed to be an overcharge. (5) When a case pending before a commissioner is adjourned from day to day, a witness is bound by the original subpoena to remain in attendance. (0) When an examination before a commissioner is adjourned from day to day, the marshal is authorized, by the original warrant of arrest, to retain the defendant in custody. For that purpose no additional warrant is required. (7) When, by a rule of court, a commissioner was forbidden to issue warrants, unless founded upon the affidavit of certain officers, but by the same rule the district attorney was authorized to institute prosecutions in such cases as he may approve in writing upon the complaint, and his indorsement was, “ The commissioner will issue a warrant on the within affidavit if, in. bis opinion, there is reasonable ground to believe the accused guilty,” such an indorsement is a substantial compliance with the rule. (8) Separate recognizances for witnesses to appear at court-in the same case are not required. All maybe joined in one. (9) A commissioner is not required by section 1014, Eevised Statutes, to return copies of process to court when the defendants are not held to appear for trial, nor to send copies when the original is required. (10) Upon the whole case the claimant is entitled to recover the sum of $2,071.10.