forth in writing, under oath, upon his knowledge or belief, that the opposite party is in the possession or control of some document to which the applicant is entitled, such court or a justice may order such opposite party, or if the same be a body corporate, then some officer thereof, to make answer on oath at or before a time to be fixed in said order, as to what document he so has relating to the matter in dispute between the parties, or what he knows as to the custody of such document, and if in his possession or control, whether he objects to the prOduction of the same and the grounds of such objection; and thereupon such court or justice may require the production of said document, or may compel the party having the same in his possession or control to allow tb;e applicant to inspect the same, and, if necessary, to take examined of the same; and may make such further order thereon as shall be just. Thl's motion is not framed in accordance with the statute, and it must be dismissed.
In f'e Account of DISTRICT ATTORNEy.1
(District Court, E. D. Missouri. January 30, 1885.)
DISTRICT A'I'TORNEY'S J!'EES-SECTION
838, REV. ST., CONSTRUED. Expenses and services of district attorneys, in examining revenue reports upon which no actions are thereafter instituted, fall within the rule for compensation prescribed by section 838 of the Revised Statutes.
William H. Bliss, U. S. Dist. Atty., per set . TREAT, J. An account of the United States district attorney is presented. for the certificate of the judge, nnder section 838, as to certain cases enumerated. Under section 824 his fees in most cases become certain, as the COtlrt records show them; yet there are many concerning which evidence dehors the court records are necessary, viz., presence before commissioners, travel, etc. It is important to look at the dates of the statutes, so that the imperfections or mischiefs to which later statutes are aimed may furnish guides for interpretation. Under section 824 (looking to the dates of the acts consolidated) the district attorney was allowed fees only in cases actually instituted in this court, o.r with respect to proceedings before United States commissioners, and attendant travel. It became apparent to this court, years ago, that such proceedings before United States commissioners were liable to abuse, involving injury to parties proceeded against, and instituted, it might be, to give fees to deputy-marshals and commissioners, and involving unnecessary fees and traveling expenses for the district attorney. Hence the following rule of court was made, and later the proper department suggested a like rule for all United States courts: In every criminal proceeding before a United StaLes commissioner, he shall, before issuing snbprenas for the hearing of the case, cause the proper United States district attorney to be informed thereof, and await a reasonable time
Reported by Benj. F. Rex. Esq., of the 8t. Louis bar.
IN BE DISTRICT A.TTORNEY.
his action with reference thereto; and when the COillluissioner has disposed of the case he shall cause the original complaint, together with a'brief statement of his action thereunder, and the original recognizance. if any, and copy Qf the commitment or mittimus, duly certified, to be promptly filed in the clerk's office of the proper United States court; and before taking bail, when the prisoner is held for the action of a grand jury, the commissioner should cause notice of the time and place for hearing the application for bail to be given to the district attorney.
In the ordinary administration of the law, when complaints were made, the district attorney was bound to act thereunder, by refusing to proceed thereon, or by causing examination to be had before commissioners, etc. If he was of opinion that the complaint was groundless, it was his duty to proceed no further. It is true, that a large measure of responsibility was thus cast upon him, yet, as he represented the government that prosecutes offenses, and never prosecutes the innocent, the duty to determine when complaints were frivolous, or otherwise, rested primarily with him. Were not this so, he would make, through his office, the government the agent of private malice or of blackmail. There must be, in the very nature of judicial administration, a preparatory examination by the district attorneys as to private complaints; otherwise, the innocent as well as the guilty would be alike confounded by indiscriminate prosecutions, at the instigation of those who have only personal ends to subserve, As the law then stood, and now stands, the accused, however wronged, pays his own costs and expenses; so that it often happens that the innocent, when acquitted, suffer more than the guilty. Such a condition of affairs caused this and other courts to exact careful scrutiny from district attorneys prior to the prosecution before commissioners or the court. But under the revenue systems collectors undertook to discriminate in cases of violations of law, and on their judgment reported or refused to report alleged offenses. They made themselves thereby judges, in a modified sense, of such offenses. Congress cut up (section 838) such arbitrary power or conduct, by requiring all such matters to be reported to the district attorney. On the incoming of such reports it was made the duty of the district attorney to examine the same, and institute proper proceedings in court, "unless upon inquiry and examination he shall decide that such proceedings cannot probably be sustained, 01' that the ends of public justice do not require that such proceedings be instituted." This statutory rule sought to enforce elemental principles, coupled with an obligation upon revenue officers to report to the district attorney. It is obvious that if the district attorney, in order to accumulate fees, caused judicial proceedings to be instituted on every l'eport so made, not he alone, but other officers, would devour the government, or the accused, with useless costs and expenses; hence the wise provision of section 838, viz.:
"And for the expenses incurred and services rendered in all such cases, [where it was decided not to bring suits,] the district attorney shall receive
and be paid from the treasury such sum as the secretary of the treasury shall deem just and reasonable, upon the certificate of the judge before whom such cases are tried or disposed of."
Resting upon an extremely narrow and technical construction of the wordsTast quoted, it is said that the treasury department has ruled that the provisions of this section apply only to caseS actually instituted, thereby defeating the broad purpose and just ends sought to be obtained by the statute. There was no need of a new statute to give the district attorney fees in cases instituted; but there was need of compelling him to bring no suits until full examination first had in his office. If suits were to be brought on all reports made, however frivolous, and thereby his and other costs incurred to the. detriment of the public treasury, and the outrage of the citizen, the statute in question would not have been passed. To prevent so lamentable a condition of affairs, and to secure an honest and diligent investigation, congress provided that for such investigation proper compensation be awarded, without compelling the unjustifiable and expensive process of useless litigation. But it is urged that the languagp. of section 838 is confined in terms to a "certificate of the judge before whom such cases are tried or disposed of;" and hence the district attorney, who by the section is requited to make due "inquiry and examination" to avoid wrongful suits, must loose all compensation, or bring suits regardless of their merits. Such an interpretation seems suicidal. In Ii very narrow sense no "case" is tried or disposed of by a judge until formally instituted in court; yet many accusations and proceedings, through habeas corpus, or before commissioners, etc., are "dispOsed of" without technical trial. The term "case," as used in the statute, was intended to cover, and does cover, all complaints reported by revenue officerB to the district attorney, which might be subject to the final determination of the conrt, by trial or other action therein. They have come within the reach of judicial administration,and are within the purview of the statute. If this be not so, then the mischief sought to be cured will still exist with increased force. It is held, therehre, that the expenses and services of the district attorney's office in examining revenue repol·ts, when no judicial action thereon is thereafter formally instituted, fall within the rule for compensation prescribed. True, the judge must be satisfied as to said expenses and services in order to certify what is "just and reasonable." Some of the cases involve as large a measure of "inquiry and examination" as if they had passed through indictments to a final trial, with heavy costs for witnesses and jury service; all of which can be saved to the government, and consequently are within the purview of the statute. What is meant, under section 838, by "cases tried or disposed of before the judge?" Section 824 fixed the fees of the district attorney in case formally prosecuted before the court. Hence, if section 838
IN RE DISTRICT ATTORNEY.
is to be limited. to such cases, then there is no ground for the action of the judge, unless section 824 is to be construed to override the provisions of section 838. If the latter section is designed to cover all "cases" instituted in court formally, and no others, then what becomes of the fixed rates under section 824? May the the judge disregard statutory fees? What are tried, etc., before the judge as contradistinguished from the court? If the views suggested limiting compensation to "cases" formally instituted, are to prevail, then a direct conflict between those sections is presented. The two sections are reconcilable. They pertain to different matters. Section 824 fixes rates of compensation when suits, etc., are formally instituted, and section 838 provides for the compensation to be given when suits are not instituted on revenue reports made, but disposed of by the district attorney in his office. Section 838 must be limited to the latter "cases," and is designed to provide therefor. Otherwise section 824 is in conflict. The purpose of the statute is to fix fees in prescribed cases under section 824, and to leave to the judge, under section 838, the determination of the proper measure of compensation in cases disposed of in the district attorney's office, which, though not formally before the court, may be brought there. Otherwise the judge might allow, under section 838, compensation regardless of section 824. In one sense cases are not determined by the judge as such, but by the court. Certainly narrow distinctions of that nature should not defeat the clear intent of the statute. It is not necessary to enter upon a discussion, heretofore presented to this court, of the constitutional validity of acts of congress devolving on judges, eis nominibus, the functions of auditors. It must suffice that the measure of compensation should be largely measured by rates named in section 824. Taking those rates as a guide, I have examined the account in open court. Until the act of February 22, 1875, (Supplement, p. 145, c. 95,) the acts of congress seemingly contemplated the immediate auditing by the judge, without formal proceedings in open court. Since that act all accounts fot fees, etc., whether under section 824 or 838, should be considered as within the act of February 2:&, ]875. Hence I have caused this account to be 'presented in open court, and after consideration thereof the court orders the same approved.
(Oircuit Oourt, D. Rhode Island.
ENLISTMENT OF MINOR IN ARMy-DiSCHARGE ON HABEAS CORPUS.
A minor who has been enlisted in the army without the written consent of his parent8 or guardians entitled to his cU8tody and control, will be released on habeas corpus issued on petition of such parents or guardians. In such case, a court-martial caunot retain jurisdiction of the enlisted man . under charges of desertion.
SAME-JURISDICTION OF COURT·}lARTIAL-DESERTION.
Habeas Corpus. Darius Baker, for relator. Cyrus M. Van Slyck, for respondent. CARPENTER, J. This is a writ of habeas corpus issued on the petition of Augustus E. Baker and Augustus T. Baker, and directed to Clement L. Best, colonel of the Fourth Artillery, commanding him to produce the body of the said Augustus E. Baker. The return, and the proofs, which are not disputed, show that Baker enlisted in the army on the eighteenth day of December, 1884; that he afterwards deserted the service, and was apprehended and returned to Fort Adams; and that charges of desertion have been filed against him pursuant to the forty-seventh article of war, (Rev. St. § 1342,) and that he is now held for trial on said charges. The proofs further show that he was, at the time of his enlistment, and still is, under the age of 21 years; that the relator, Augustus T. Baker, is his father, and is entitled to his custody and control, and has never consented to the enlistment. The forty-seventh article of war is as follows:
"Any officer or soldier, who having received pay, or having been duly enlisted in the service of the United States, deserts the same, shall, in time of war, suffer death or such other punishment as a court-martial may direct; and in time of peace, any punishment, excepting death, which a court-martial may direct."
The language of Rev. St. § 1117, is as follows:
"No person under the age of twenty-one years shall be enlisted or mustered into the military service of the United States without the written consent. of his parents or guardians: provided, that such lIlinor has such or guardians, entitled to his custody and control."
The relators contend that the enlistment, being made contrary to law, is absolutely void; that, consequently, Baker has not, at any time, been "duly enlisted in the service of the United States," and has not been capable to commit the crime of desertion; and that a court-martial has no jurisdiction over him on such charges; and that, finally, the respondent has no right to restrain him, either to service under his enlistment, or for punishment for the offense with which he is charged. On the other hand, it is contended on behalf of the military authorities that the enlistment is voidable only, and not void, and that the recruit remained subject to military authority, and hence