
    JOHN CARROLL v. THE UNITED STATES.
    [No. 18198.
    Decided May 20, 1896.]
    
      On the Proofs.
    
    The suit is brought by a marshal to recover mileage for travel to serve •warrants of arrest and subpcenas for witnesses where two or more writs were executed in the course of one trip. As to the former, the suit is really for the benefit of his deputies, he having received his maximum compensation. As to the latter, it does not appear why the names of two or more witnesses were not inserted by the clerk in the same subpoena.
    I.Where a suit is brought by a marshal in his own name, but is really for the benefit of his deputies, and it appears that he has received his maximum compensation, but does not appear what he owes bis deputies, the court will nevertheless render judgment for the full amount of his fees, subject to adjustment at the Treasury under the decision of the Supreme Court in United States v. Harmon (147 U.S. R., 268).
    II.The remitting of this question to the Treasury for determination will not destroy the finality of a j udgment by enabling the accounting officers to reduce it in amount. In the cases of these public officers there is a constantly running account constantly subject to readjustment; and judgments for their compensation are necessarily subject to the statutes prescribing a maximum. If the accounting officers refuse to credit the officer with items to which he is entitled, an action will lie on the judgment for the unpaid balance and the action of the accounting officers will be subject to judicial determination.
    III.The Revised Statutes (§ 829) provide that when two writs in certain cases may be served at the same time, the marshal shall be entitled to compensation for travel on only two; and that the clerk shall “insert the names of as many toitnesses in a cause in a subpoena as convenience in serving the same will permit.” The clause “as convenience in serving the same ivill permit,” implies that the provision is directory and not mandatory. The clerk is the person to determine the question of convenience; and if the marshal's accounts have been approved the burden of proof is rrpon the defendants to-show collnsion between the clerk and the marshal, or to establish, the fact that no question of convenience could have arisen.
    
      
      The Reporters7 statement of tbe case:
    The following are the facts of the case as found by the court:
    I. The claimant, John Carroll, was the marshal of the United States for the western district of Arkansas from January 1, 1888, to May 29,1889, duly qualified and acting.
    II. During said period the claimant, as said marshal, actually and necessarily performed the duties as said marshal in accordance with the statutes of the United States made and provided, and for the services, travel, and expenses of himself and duly appointed deputies, except as hereinafter stated, he made up his accounts, duly verified, and presented the same to the United States court for approval in the presence of the district attorney, as required by the Act of February 22,1875 (18 Stat. L., 333), and orders approving the same as being just and according to law were- duly entered of record. Said accounts were then presented to the accounting officers of the United States Treasury Department for payment, and the same Avere adjusted in due course of time. In said accounts either one mileage only was charged by marshal or deputy for travel to serve more than one warrant or subpoena on any one trip, or, if more than one mileage was charged, it was disallowed by the accounting officers.
    III. Subsequent to the rendition of the aforesaid accounts claimant made up his accounts for mileage actually and necessarily traveled to serve each warrant and subpoena placed in his hands for execution against different persons for different offenses, where two or more of said writs were duly executed in the course of one trip, at 6 cents per mile, computed from the place where the process is returned to the place of service, as provided by paragraph 25 of section 829, Revised Statutes. Said accounts, duly verified, were presented to the United States court for approval in the presence of the district attorney, and orders approving the same for $2,329.40 and $886.08, respectively, as being just and according to law, were entered of record.
    IY. The services and travel embraced in said accounts are as follows:
    1. For traveling 38,824 miles actually and necessarily performed in going only on one or more trips to serve warrants of arrest against different persons for different offenses, and for subpoenas for witnesses, issued either by the United States court or by United States commissioners, where two or more of said writs were duly executed in the course of one trip, at six cents per mile, computed from the place where the process is returned to the place of service, from January 1,1888, to December 31,1888, $2,329.40.
    2. For traveling 14,768 miles, as in item 1, from January 1, 1889, to May 29,1889, $886.08.
    V. Said accounts have not been presented to the accounting officers of the Treasury Department for payment for the reason that they refused payment for similar charges in prior accounts.
    YI. During the above' periods the claimant received the maximum rate of compensation allowed by law. The amounts to which he may be indebted to his deputies do not appear.
    
      Mr. Charles C. Lancaster for the claimant.
    
      Mr. Felix Brannigan (with whom was Mr. Assista/nt Attorney-General Dodge) for the defendants.
   Nott, J.,

delivered the opinion of the court:

Two objections are, raised in this case on the part of the defendants.

The first is thus stated by their counsel: The claimant has received his maximum compensation. The defendants owe him nothing. If he recovers, it will be in effect for the use of his deputies; and what he owes or will owe to them — i. e., what they will be entitled to receive — does not appear.

In an ordinary suit at law, this undoubtedly would be a good defense. But in the case of The United States v. Harmon (147 U. S. R., 268), the Supreme Court decided that whether the payment of the amount of a judgment in favor of a marshal will exceed his maximum compensation as marshal and the proper expenses of his office is a matter which will still be open for adjustment at the Treasury.

It is true that the fact did not appear in the Harmon Case, as it does in this, that the marshal had received all that he was entitled to in the way of compensation — his maximum. But it did appear that he might have received it, or that the judgment, when paid, might carry his compensation up to a total exceeding that allowed by law.

It has also been suggested on the part of the defendants that the remitting of this question to the Treasury for determination will be the destroying of the finality of a judgment, by enabling the accounting officers to reduce it in amount and adjudge that a sum certain is not due and owing from the defendants to the claimant where the judiciary has adjudged that it is.

But this court does not understand that the decision in the Harmon Case will have that effect or remove the final determination of a party’s legal rights from the judicial forum to that of the accounting officers. In these cases, there is a constantly running account between the parties. At the moment when a suit is brought the marshal may be entitled to recover the fees which are the subject of the action. Before judgment is rendered he may 'receive other fees, bringing his compensation up to the maximum. Therefore the right to payment in these cases must always be subject to the maximum condition imposed by the statute. If the accounting officers, in the determination of his fees and the proper expenses of his office, refuse to credit the officer with items to which he is legally entitled, an action will lie on the judgment for the unpaid balance, and the legality or the illegality of these items will then be a subject for judicial determination. (Brown's a Case, 6 C. Cls. R., 174; United States v. O’ Grady, 22 Wall. R., 641.)

The second objection is, that it does not appear why the names of two or more witnesses were not inserted in the same subpoena as required by the Revised Statutes, sec. 829, in order to “save unnecessary expense.”

The twenty-fifth clause of that section is in these words:

“But when more than two writs of any kind required to be served in behalf of the same party on the same person might be served at the same time, the marshal shall be entitled to compensation for travel on only two of such writs; and to save unnecessary expense, it shall be the duty of the clerk to insert the names of as many witnesses in a cause in such subpoena as convenience in serving the same will permit.”

The clause “ as convenience in serving the same will permit’* implies that the provision is directory and not mandatory. Someone must determine the question of convenience, and that person is manifestly the clerk. It is not neces’sary to hold in this case that the clerk has a discretion which can not be a subject of review in a court, and the court does not so decide. But it seems manifest that where the duty prescribed by statute is cast upon another officer and not upon the claimant, and where the claimant’s accounts, as in this case, have been approved by a district court, the burden of proof is upon the defendants to show collusion between the clerk and the marshal or to establish the fact that no question of “convenience” could have existed for the determination of the clerk in the case of each contested item.

The judgment of the court is that the claimant recover, subject to adjustment at the Treasury under the decision of The United States v. Harmon (147 U. S. R., 268), $3,215.48.  