the purview of the eleventh amendment. It is riot within the power of the state, directly or indirectly, to put in force a schedule of rates, when the rates prescribed therein will not pay the cost of service. In this case the defendant took no testimony, and. the complainant's tef:1timony shows that the actual cost of the service, that is, wages of employes, rent of engines, keeping the track in repair, exceeds per car by fourteen cents the amount allowed in the schedule as compensation. In other words, it costs complainant one dollar and fourteen cents per car to do the work, and the defendants propose toitllow it to charge only one dollar. "The state. cannot require a railroad corporation to carry persons or property without reward." Railroad Cammiasion Cases, 116 U. S. 331,6 Sup. Ct. Rep. 344. Whether this order of defendants is an interference with interstate commerce or not, is a question I need not decide. My Brother NELSON, when the application for a preliminary injunctionwas made to him, was of the opinion that it was not. The case of The Daniel Ball, 10Wall. 557, was relied upon by the complainant's counsel, but the defendants insist that the decision in Stone v. Trust Co., 116 U. S. 307, 6 Sup. Ct. Rep. 334, shows that this order was no interference with interstate comnierce, and, being later than the case in 10 Wall., in so far as it conflicts with that, overrules it.. But the caseof Cae v. Town of Errol, 116 U. S. 517, 6 Sup. Ct. Rep. 475, reaffirms the case in 10 Wall., and certainly makes it, a very serious question whether, when property has been put in a. car with the intent of shipping it outside of the state, it has not already commenced its interstate journey. However, I do not attempt to definitely decide this question, placing my upon the other grounds mentioned. A final decree will be entered in favor of the complainant,. as . prayed for.
BARBER fl. UNITED STATES.
(Di8trict Oourt, Jf. D. Alabama. November 28. 1887.)
UNITED STATES BY DISTRICT ATTORNEY.
DRAWING COMPLAINTS -
Where the United States district attorney examines and approves complaints drawn by a circuit court commissioner. the court will not reduce the commissioner's fees for the same on the ground that they were unnecessarily verbose, unlllss it appears that surplusage was inserted merely to increase fees.
SAME-SEVERAL COMPLAINTS AGAINST SAME PARTY UNDER SAME STATUTE.
Where the commissioner, acting under instructions ofthe district attorney, draws complaints and issues warrants in more thlln one suit against the same party for violation of the same section of the statutes, he is entitled to fees in all the suits.
SAME-ACKNOWLEDGMENT OF RECOGNIZANCES.
The commissioner is entitled to fees for acknowledgment of bonds incrim· inal cases, as the statute requires such acknowledgment, and fixes the fee at 25 cents; and Where the acknowledgments of the parties are taken separll.tely he is entitled to a fee for each acknowledgment.
BARBER V. UNITED STATES.
At Law. On demurrer to a petition for fees' as circuit court commissioner, and upon the merits. Geo. H. Patrick, for plaintiff. Geo. F. Moore, Asst. U. S. Atty., for the United States. BRUCE, J. This is a suit brought under the recent act of congress approved March 3, 1887. The complainant is a commissioner of the circuit conrtof the United States for the Middle district of Alabama, and charges that the amount sued for is due to him for services rendered by him as commissioner for and on behalf of the United States. He charges that the amount sued for was included in an account which, as such commissioner, he made against the United States, and which was verified by oath, and was duly presented to the district court of the United States for this district, for approval, and that such account was duly approved by the court, and transmitted to the proper accounting officer at Washington, and that the first comptroller of the treasury department disallowed a portion of his account so transmitted, as per his statements of differences which are submitted in the evidence in the cause. To the petition or complaint the district attorney of the United States for this Middle district of Alabama interposes a demurrer. and says that said accounts have been adjusted by the first comptroller of the United States treasury; and that the reasons that inGuced the first comptroller to disallow numerous items in said accounts are sufficient in law to sustain his action. It is not really claimed, and it cannot be maintained. that there is anything in the action of the first comptroller on the accounts in question which is in the nature of a bar.to this suit. His action is not like the action of a court, and there is no element of res adjudicata in the action of an accounting or administrative officer upon public accounts. The demurrer goes further, and brings up the sufficiency of the reasons given by the first comptroller upon which he bases his action in disallowing the accounts now in suit. Some of the objections on which are based disallowances are of such a general character that it is difficult to consider them. But the objections to accounts from March 1 to April 30, and from May 1 to June 3D, 1887, are more specific, and one of them is to all charges in excess of three folios for drawing complaints and oath thereto. This objection is also made to recognizances, certificate, and transcript of proceedings. Upon the hearing it was sh()wn that the folios charged for were not in excess of, but were within, the number of folios actually employed in the complaints and proceedings objected to. The question, then, is whether the commissioner has used unnecessary verbiage which ought not to have been employed, and was mere surplusage, to increase fees, or the contrary. It is evident, at a glance, that no very definite rule can be made on this subject, for the length of complaints, for instance, will depe,nd upon the nature of the offense charged; and in a matter of this kind the court will not consider the smallest number of words that might be used in a given case, but only if there appears to be a surplusage of words used which can serve no useful purpose, and only add to the prolixity of the papers. Matters of this kind must come
properly under the notice of the dietrict attorney, and when he examines the account, as in these cases he does,anu does not find the papera, the forms for which in many cases were prepared under his direction, liable to this objection, the court will not be swift to say that the papers might have been condensed, and more brevity used. The prudent and careful administration of the criminal law does not admit of the application of an unbending rule of brevity on thie subject, and, while possibly more brevity might have been sutficient in given cast:s, yet the court, in this case, does not find the papersobnoxiolls to the objection made. The next objection is, charges for more than one case against the same party for violation of the same section of the Revised Statutes. When cases may properly be joined or not is a question of law, the decision of which more properly belongs to a court than to an accounting officer of the treasury; indeed, it could only be in a very extraordinary and manifest case of abuse in which an accounting officer would be justified in .naking any question at all in a matter of that kind. It is shown to the court that in the cases in question, the commissioner acted under the instructions of the district attorney for the Middle district of Alabama, and the warrants were directed by him to be issued; and, under these circumstances, the accounting officeris not in a position to disallow the fees of the commissioner on the ground. stated. The remaining objection is to tho charge for acknowledgment of bonds. The comptroller's objection is two-fold,-that acknowledgment of bonds in criminal cases is unauthorized, and that one acknowledgment should answer for all of the recognizors to the same instrument. On the very face of the matter. if an offender·is to be admitted to bail at all, there must be some acknowledgment of such bail. The statute in terms requires it, and section 847, Rev. St., fixes the fee at 25 cents, which is the amount charged. It seems equally clear'that the bond must be acknowledged by the accused and each of his sureties; and the proof shows that the acknowledgments sued for herein have been separate, and not joint. Vide section 1014, Rev. St. U. S.; Desty, Fed. Proc. (6th Ed.) pp. 579-583, and cases cited; 1 Brick. Dig. Laws and Dec. Ala. "Bail in Criminal Cases," p. 207, §§.125, 126, and cases cited; Brightly's Dig. Laws, p. 166, § 2; sections 627,945,5394, Rev. St. U. S. JUdgment will therefore be entered in favor of the plaintiff for the sum of $995.35, with interest from date, together with the costs to be taxed.
BELL V. UIUTED STATES.
BELL V. UNITED STATES.
(District Oourt, Jf. D. Alabama. November 25, 1887.)
UNITED STATES COMMISBlONERB-DoCKE; FEES.
Commissioners of the United States circuit courts are entitled to the Bame docket fees as are allowed clerks of such courts; and the proviso in the appropriation bill of August 4, 1886, excepting docket fees from the sum appropriated for the payment of commissioners, does not affect their right to such fees accruing in a subsequent year.
At Law. On demurrer to petition for commissioner's fees, and upon the merits. Geo. H. Patrick, for plaintiff. Moore, Asst. U. S. Atty., for the United States.
BRUCE, J. This is a suit brought under the recent act of congress app.roved March 3, 1887. The plaintiff is a commissioner of the circuit court of the United States for the Middle district of Alabama, and claims that the amount sued for is due to him for services rendered by him as commissioner for and on behalf of the United States. He charges that the amount sued for 'Was included in aecountswhich, as such commissioner, he made against the United States, and which were verified by oath and duly presented to the proper court of the United States for Alabama, for approval, and that such accounts were duly approved by the court, and transmitted to the proper accounting officer at Washington, except one account not forwarded; and that the first comptroller of the treasury department disallowed a portion of his accounts so transmitted, as,perhis statements of differences which are submitted in evidence in the cause and referred to in the petition, and the reasons assigned therein apply to the account not forwarded. To the petition the district attorney of the United States interposes a demurrer, and says that said accounts have been adjusted by the first comptroller of the treasury department; and, that the reasons that induced the comptroller to disallow said items are sufficient in law to sustain his action. The questions presented in this case are, with one exception, substantially the same as in B(Lrber v. U. S., ante, 886, (decided at a former day of this term,) and that decision is approved and followed herein. A further objection appears in this case, viz., the disallowance of fees for making dockets, indexes, etc., under sections 828, 847, Rev. St. U. S. 'The right of commissioners to charge and collect the same docket fees as clerks, was affirmatively decided by the supreme court of the United States, January 18, 1886, in U. S. v. Wallace, 116 U. S. 398, 6 Sup. Ct. Rep. 408. The only authority relied upon to take this item out of ,commissioner's accounts thereafter is found in the proviso to the clause of the appropriation bill of August 4, 1886. excepting docket fees from the sum appropriated for the payment of commissioners. Congress at the next session, failed to repeal or modify sections 828 OJ: 847, or to 'Continne the exception in the appropriation for the fiscal year 1887