BAND V.UNITED STATES.
11. UNITED STATES.
Courl, D. Maine. October 25, 1888.)
CLAIMS AGAmST UNITEDSTAT1IlS-JURI8DICTION Oll' FEDERAL COURTS-PRIOR REJECTION.
Act March 8, 1887, giving to United States courts jurisdiction of claims against the United States, contains a proviso "that nothing in this section shall be construed as giving either of the courts herein mentioned jurisdic· tion to hear and determine claims, which have been heretofore rejected or reo ported on adversely by any court, department, or commission authorized to hear and determine the same." Held that, the comptroller of the treasury having charge of the adjustment of accounts against the government, a rejection of an account by him is a rejection by a department authorized to hear and determine the same, within the meaning of the proviso. Following Blisa v. U. S., 84 Fed. Rep. 78t.
UNITED STATES COMMISSIONERSc...-FEES-DRAWING COMPLAmTB.
It being important to the liberty of the citizen and the due administration ,of justice that complaints and recognizances in criminal cases should be te,chnically full and 'complete, a United States commissioner is entitled to compensation for such papers 'as drawn and entered by him in good faith, and in accordance with the practice Of the state within which he acts, although the comptroller of the treasury may be of opinion that such papers may be comprised within a given space, and that all beyond is "unnecessary verbiage." Compensation at the statutory rate cannot be denied to commissioners, for oaths Mministered to sureties in crimiual cases, on the ground that such oaths were unnecessary, as they cannot be held to know the sufficiency of a 8urety offered until he has been examined under oath. Commissioners, being allowed the same fees as clerks for taking acknowledgments, are entitled to a fee for each person acknowledging a recognizance, and not simply to one fee for all the acknoWledgments of a recognizance.
, ' ,
SAME-'-CRIIDNAL RECOGNIZANCE-OATHS TO' SURETIES.
SAME-ACKNOWLEDGMENTS TO RECOGNIZANCE.
e. SAME-'-PlcR DIEM.
Act Aug, 4. 1886, entitled " An act making appropriation to supply deficiencies in the appropriations for the fiscal year ending June 80, 1886, and for prior years, and for other purposes," and enacting tliat cer,tain sums be proprlated to supply deficiencies in the appropriation for the fiscal year 188 , and for other objects hereinafter stated, * * for fees of commissioners, · * * $50,000: provided, that for issuing any warrant or writ, or for othe,r necessary service, commissioners may be paid the same compensation as is allowed to clerks for like services. but they shall not be entitled to any docket fees, "-does not,take away the rigbjt of commissioners to receive docket fees, but only excepts their payment out of the sums so appropriated.
Under Rev. St.U. S. § 847, allowing commissioners, "for hearing and deciding in criminal charges,Dve dollars a day for the time necessarily employed,· the commissioner is entitled to a per diem for" hearing and deciding" a charge, lhough no evidence be produced or witnesses examined.
Petition for the Allowance of a Claim against the United States for fees as commissioner. E. M. Rand, pro 86. George E. Bird, U. for the United States.
WEBB, J. The petitioner, a commissioner of the circuit court in this district, prosecutes his claim against the United States for fees for services, his charges for which have been suspended or disallowed by the first oomptroller of the treasury. It is admitted that accounts for all these
services have been regularly presented, and that he has performed all the work for which he claims .compensation. But it is objected that for some services his charges are excessive by reason of unnecessary length of papers, and for others he is not legally entitled to anything. A portion of the account set out in the petition was presented to and . rejected by the comptroller prior toMarch 3, 1887, and to so much of his demand it is objected that the court has not jurisdiction. Precisely this question is decided in favor of the government in Bliss v. U. S., 34 Fed. Rep. 781, and, while not asserting a conviction of the absolute conclusiveness oBhe reasoning of that case, I am not prepared to dissent from it, especially in view of the importance of harmony and uniformity of decisions in the courts of the United States. Accordingly, so much of the petitioner's claim as was passed upon and rejected by the comptroller before the approval of the act under which these proceedings are had, is disallowed. This strikes out $115.05. The remainder of the account, consisting of a large number ofsmall charges, need not be Considered in detail, as all the particulars fall into a few classes. They are for compensation in excess of the amount allowed by the comptroller on complaints and recognizances; for oaths to sureties justifying; for tteknowledgment of recognizances; and for per diem fees, in hearing and determining on criminal charges. There is no controversy in respect to what the commissioner actually did, and if there were, the evidence is conclusive that he has charged for no service which he did not perform. Section 1014 of the Revised Statutes provides: "For any crime or offense against the United States, the offender may, by any commissioner of a circuit court to take bail, of any state where he may be found, and agreeably to the usual mode of process against offenders in such state, and at the expense of the United States, be arrested and imprisoned, or bailed, as the case may be, for tdal before such court of the United States as by law has cognizance of the offense." Thus the proceedings before commissioners in criminal matters are by the proceedings for similar purposes under the laws of the state where they take place, and are assimilated thereto as closely as may be. O. S. v. Rundlett, 2 Curt. 41. The usual mode of process in Maine is regulated by statute. The first steps are complaint on oath and rant for arrest. The magistrate may adjourn the exarnination from time to time, not more than 10 days at a time; and the accused, if the offense is bailable, may recognize with sureties for his appearance at the time of adjournment; but if the offense is not bailable, or if sufficient sureties are not offered, the accused shall be committed to jail by an order of the magistrate stating briefly the offense, and that the party is committed for further examination. The complainant and witnesses for the prosecution shall be examined on oath, in the presence of the accused. Upon its appearing that an offense has been committed, and that there is probable cause to charge the accused, if the offense is bailable, and sufficient bail is offered, it shall be taken, and the accused discharged. If the offense is not bailable, or no sufficient bail is offered,. the accused shall be committed to await trial. If the accused is committed or bound over
RAND V·. UNITED STATES.
for trial, the. magistrate shall· order material witnesses for the prosecution to recognize, with or without sureties, as may be considered necessary; and if they refuse to recognize as required, the witnesses may be committed to prison, and remain till discharged by law. Magistrates must certify and return to court all examinations and recognizances, and for neglect and refusal are liable to attachment for contempt. Rev. St. Me. c. 132, §§ 5, 6; c. 133, §§ 9-17, inclusive. The proceedings before this commissioner are shown to have conformed to these requirements in every instance. The objections made to his charges are not that the services were not actually performed, or that the rates of charge are improper, but that the services were, in whole or part, unnecessary. The comptroller undertakes by inflexible rule to determine the necessary length of complaints and recognizances, and refuses compensation for anything in excess of the limit he so fixes, declaring the same to be "unnecessary verbiage." It is true that commissioners have power only to examine and hold to bailor commit for appearance at court parties arrested and brought before them. But this power authorizes the imprisonment of accused persons for considerable periods to await trial. This incarceration, if tbe party is finally convicted and sentenced, constitutes no part of the sentence, 'and, in most cases, is not regarded in passing sentence. It may, and often does, exceed the time of imprisonment finally imposed as a punishment for the offense committed. Aecqsed persons are also subjected to the burden of finding sureties, and the sureties to trouble, expense, and loss of time in appearing before the com-· missioner to recognize. It is by no means certain that Ii. grand jury will present an indictment against every accused person held by the cOlnmissioner to answer, or, if they do, that conviction will follow. A due regard to personal rights seems, therefore, to require that all proceedings before the examining n1agistrate should be conducted with care and exactness. If the technical fullness and precision essential in an indictment is not requisite in a complaint,-a question in respect to which, under our constitutional system, there may be room for doubt,-complaints should be full enough to show clearly the particular offense charged, and contain substantial, if not formal, allegations,of its essential elements, as well as the details oftime, place, and persons. State v. Smith, 2 Me. 62. If the complaint, which is the basis of all the proceedings, fails to set out, even informally, an offense against the laws; if its statements may be all admitted without confessing any violation of law,-of what can it be held that there is probable cause to believe the party accused guilty, or why should he be ordered to recognize with sureties, and for want thereof to be confined injail? It bas been well said: "There is no necessity, nor even apology, for a careless or incorrect manner of conducting any judicial process; especially one which controls the personallibertyof the subject, and requires him to defend himself againiilt a criminal accusation. When, therefore, a magistrate institutes such a process, it is his duty to make it conformable to the reqUirements of technical precision." .In a recognizance less fullness and particularity may be sufficient; put it should be carefully drawn, to avoid defects which may prove fatal in a v.36l!'.no.11-43 .
proceeding by scirefacia8 or debt against principal or sureties. It should contain the names and residences of the recognizors. and the amount in which they are bound. The condition should show the proceeding in which the reMgnizance is taken, the particular offense for which the principal is held to answer, or, if it be the obligation of a witness, the matter with·respect towhich he is held to testify, and the court before which the appearance is. required. The authority of the magistrate to require and take the recognizance must appear from the description of the offense charged. Stare v. Hatch, 59 Me. 413; Rev. St. Me. c. 133, §25. It is not possible to determine beforehand, and for all cases, the necessary length of recognizances or other records. The petitioner. in his practice, has conformed to long-established usage in this district, and has followed the requirement and directions of the court made known years ago; There is no suggestion or reason to suspect that for the purpose of increasing his fees he has willfully expanded any papers. Every one who has had experience in framing complaints and indictments under the statutes of the United States knows the great care necessary to make, them conform to the statutory provisions and the requirements of criminal pleading. Officers should rather be commended for exactness and precision, even though s()metimes unnecessarily particular, than invited to loose and slovenly practioe, by a denial of legal compensation. The evidence establishes that this petitioner has performed all the services for which he has charged. He is entitled to be paid for those services, and it is no justification for withholding from him that payment, even if it be the fact that another pleader might have drawn his papers more concisely. The charges for oaths of sureties have been disallowed as unnecessary. Unless the requirement of sureties is idle and meaningless, it is hnportant that they be responsible, and able to perfOl:m the obligation they assume. .Whether they are so or 'not, cannot, in the greater proportion of cases, be within the personal knowledge of the magistrate. It is his duty to inform himself of their sufficiency. The oath of the individual offered as surety in respE:ct to his residence, property, and means is an assurance, the omission .of which would justly subjeot the commissioner to censure if the bail should be found worthless. 1 Chit. Crim. Law, . 99. The rate charged for these oaths is in conformity with the statute regulation of fees, and the petitioner has the right to be paid them. Though fees for taking acknowledgments are given in the fee-bill for clerkS of comts, and commissioners are for like services allowed the same Compensation, it is argued that items of account under thi&' head should be rejected, because a fee is charged for each acknowledgment, instead of one fee for each recognizance acknowledged. The statute which prescribes the fee contains no such rule., It is not in the power of one person to acknowledge ·'an obligation so as to bind another who does not. The responsibility ,assumed is personal, and should be personally assented to. It is quite a different proceeding from the acknowledgment of deeds, which in this state is necessary only that the instrument may be' adfuitted to registration) and, by statute, is sufficient if
RAND v. UNrfED STATES·
.made ,by onE:\ Qf.severalgrantors. ' , As every seryice of this kind charged has been, performed, the cQmpensation demanded is due. ' The right to docket fees r the decision in WIJ,UflCe'S Case,116 U 8.398,6 Su.P. Ct. Rep. 408, is fully established, unless the proviso ib. .the deficiency bill of August 4, 1886, (24 St. 274,) defeats it. Tbatact is erititled, "An act making appropriation to supply deficiencies in the for the fiscal year ending June 30, 1886, a.ld for prif:ir years, .and other purposes." Section 1 enacts: ' "That tile following sums be, and the same are hereby, appropriatrd out 'of any monl'y in the treasury hot otherwise appropriated, to supply deficiencies in the appropriation for the fiscal year eighteen hundred and eighty-siX, and for.other oujects hereinafter stated, namely, III III III 'judicial,' III III '" ·fees of commissioners.' For fees of corumissioners,and justices of the peace acting as commissioners, fifty thousand dollars: provided, that f(}r issuing any warrant or writ. and for other necl'Bsary service, commissioners Inay be paid the same compensation as is allowed to clerks for like services, but they shall not be entitled to any docket fees. ' "
Whether the title of this act does or does not show that it includes and was intended to include general legislation for other purposes than the appropriation of money, only a violent construction can find such other purposes in this section. "Tbe following sums are bereby appropriated, etc., to supply deficiencies, and for other purposes," can only mean that the moneys are appropriated for otl1er purposes, in addition to the pose of making up deficiencies. If there could be any uncertainty as to this interpretation of the section, it would be dissipated by examination of the objects. it enumerates, everyone of whieh is for the payment of p.1oney. Then what is the effect of this proviso, and why was it inserted? 41 A proviso carves special exceptions only out of the enacting clause." Per STORY, J., U. S. v. D·ickson, 15 Pet. 165. "It would be somewhat unusual to find ingrafted in an act making special and temporary appropriation, any provision which was to have a general and permanent application to all future apl-'ropriations. Nor ought such an intention on the part of the legislature to be presumed, unless it is expressed in the most clear and positive terms, and w:hen the language admits of no other reasonable interpretation." MiniB v. U. S.,
The plain intention of this statute, so far as it deals with commissioners' fees, was to authorize the use of a definite amount of money in the treasury for the payment of fees that, by reason of inadequate previous appropriations, remained unpaid. Without the proviso, legal fees of commissioners for every kind of might have been paid from the appropriation until it was exhausted. From this application of the fund to fees generally, the proviso,in thelanguage of Judge STORY, out the special exception" of docketfees. It is not difficult to suggest a reason why this exception was made. Until the supreme court, in Wallace's Case, had sustained the legality of commissioners' charges for docketfues, those charges had been uniformly held by the treasury officers improper, and had been disallowed. Naturally l therefore, in estimating the amount
of appropriation needed to supply deficiencies, and to meet the un·
paid expenses of preceding years, no account would be taken of such chargtls, and a Bum adequate to pay all the admitted and recognized expenses of commissioners would be made up; and, that the money might be devoted to the use for which it was estimated necessary, the proviso, upon attention being directed to the decision in Wallace's CUse, would be inserted. Congress could not by any legislation deprive com· missioners of their right to docket fees previously earned. It could refuse to grant money for the payment of those fees, and by this proviso did refuse to permit any of the fund appropriated in this act to be applied to that use,-a use for which it had not been estimated. The Revised Statutes, § 847, allows commissioners, "for hearing and deciding in criminal charges, five dollars a day for the tinie necessarily employed." The difference between this commissioner and the account. ing officers of the treasury is as to the interpretation to be given the words "hearing and deciding." For the United States it is contended that nothing but the production of evidence and the examination of witnesses to support the accusation and show probable cause, with, perhaps, the addition of discussion of the evidence, can be considered "hearing and deciding;" and that all charges for per diem allowances, when there is no hearing on the merits of the cases, should be summarily rejected. To this construction I cannot In the course of proceedings before an examining magistrate "agreeably to the usual mode of process," in Maine, much time is consumed, and many duties are performed in hearing and deciding criminal charges, when no evidence on the guilt of the accused is offered or discussed, and before the case is ready for final hearing and decision on its merits. "Acts upon which counsel ought to be heard, if desired, which necessitate some investigation and decision, such as determining whether the complaint is of a nature to constitute an offense for which the party can be criminally held, whether a continuance should be granted when required by one of the parties, and, in such case, the amount andsufficiency of bail, come within the terms, 'for hearing and deciding,' and the daily compensation should be allowed. Harper v. U. S., 21 Ct. 01. 56; Cum. v. Hardy, 2 Mass. 303. As such services were performed by the commissioner in this case, on the days for which he now demands compensation, his claim to be paid is well founded and is allowed. Having thus considered all the questions presented, and finding as matter of fact that the services charged for were actually performed, and that the allowances asked are proper, I have only to order judgment for the petitioner for the sum of $330.40, being the whole amount claimed except the $115.05, which had been rejected anterior to the act giving jurisdiction in cases of this kind.
FISH V. UNITED STATES.
(District Oourt, E. D. New York. October 29,1888.)
DISTRICT AND PROSECUTING ATTORNEYS-UNITED STATES ATTORNEy-AUTHORITY TO EMPLOY STENOGRAPHER,
The general authority to 'prosecute delinquents, given to a United States district attorney by Rev. lit. \3 771, authorizes him to employ a stenographer in criminal cases, and to render the United States liable to pay a reasonablo, compensation 'for services rendered, without first obtaining the authorization of the attorney general of the United States.
SAME-AUTHORITY OF ATTORNEY GENERAL.
Section 362, Rev. St., conferrin&, upon the attorney general power to superintend any criminal prosecution Instituted by the district attorney, does nO,t authorize the attorney general to control the action of the district attorney in criminal cases by general regulations.
Petition for Compensation for Services as Stenographer. In this case I find the following facts; (1) That the petitioner, at the time of the filing of the petition herein, was a resident of the county of Queens, in the Eastern diRtrict of New York; (2) that the petitioner was employed to take stenographic notes of the testimony given in criminal cases in the courts of the United States for the Eastern district of New York, from the year 1882 to the 9th day of December, 1887; (3) that the petitioner performed such duties under the employment and direction of the duly appointed attomey for the United States for the Eastern district of New York; (4) that the petitioner from time to time presented bills to the United States for his services as aforesaid, which bills, eluding the items in suit, were approved and allowed by the United States attorney; (5) that until June, 1885, the petitioner's bills, so ren;. dered and approved. were paid by the United States of America through the treasury department by treasury drafts drawn on the subtreasurer at New York to the order of the petitioner; (6) that no notice was given to the petitioner that his employment was unauthorized; (7) that the services charged for, and for which the petitioner prays judgment herein, were necessary to the proper conduct and economical dispm'ition of the criminal cases of the United States in the Eastern district of New York; (8) that the services so rendered by the petitioner were accepted by the United States of America; (9) that the services so rendered by the petitioner and accepted by the United States were reasonably worth the sum of $909.20; (10) that on or about the 20th day of December, 1887, the petitioner duly demanded of the proper department of the government of the United States of America payment of said sum of $909.20. which was refused, and no part thereof has been paid. The following are my; conclusions of law: (1) That the United States of America employed the petitioner to perform the work and render the services, for the value of which he prays judgment lterein; (2) that the petitioner is entitled to judgment against tbe United States of America for the sum of $909.20,
JReported by Edward G. Benedict, Esq., of the New York bar.