
    JOSEPH M. STAFFORD v. THE UNITED STATES.
    [No. 15782.
    Decided April 7, 1890.]
    
      On the Proofs. ■
    
    The case is that of a commissioner for fees disallowed by the accounting officers.
    I.The court reiterates former decisions, that a commissioner is entitled to his per diem, where he attends for the arraignment of a person; to his fees for sending up copies of papers where he also sends up the originals; to fees for temporary warrants for commitment where a jailer refuses to receive a prisoner without one, and to fees for notes of testimony for the use of the district attorney where a rule of court requires it.
    II.The commissioner is not entitled to fees for taking the acknowledgment of bail bonds, nor for drawing the affidavits of sureties, nor for drawing complaints to be sworn to by a prosecutor, nor for noting on his docket a marshal’s return upon process, nor for filing in his office final bail bonds, nor for both drawing a bail bond and taking a recognizance in the same case.
    III.The commissioner is entitled to fees where cases though similar are not identical, and can not properly be joined m one proceeding, and for making out pay-rolls for the use of the marshal."
    
      The Reporters statement of the ease:
    The following are the facts of the case as found by the court:
    I. The claimant has been a commissioner of the circuit court of the United States for the western district of North Carolina from 1880 to the present time. The claimant’s accounts for fees in hearing' and deciding on criminal charges at the rate of $5 a day from January 1,1887, to June 30, 1888, verified by his oath, were presented to said court in the presence of the 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. Payment for thirty-eight days charged in said accounts at $5 a day was refused. On these days the proceedings before the commissioner consisted of an entry of the complaint, an arraignment and plea of the person charged, the granting of a continuance, on motion of one of the parties, fixing the amount of bail, and if tendered, passing upon the sufficiency thereof, and if not tendered, committing the defendant.
    II. The claimant, as commissioner, returned copies of the process against all persons held by him for trial into the office of the clerk of the circuit or district court of the United States for the western district of North Carolina, and charged fees therefor at the rate of 10 cents a folio, and his accounts for fees in so doing at said rate, duringthe period aforesaid, wereapproved by said circuit court. Said fees, amounting to $37.20, were disallowed by the accounting officers of the Treasury. These charges were disallowed, because the claimant had sent to court the original papers in the several cases for. which he had charged and been paid the regular fees.
    III. The claimant also charged at the rate of $2.25 each for the issuing temporary warrants of commitment, filing the same and entering the return. Said warrants were each in the following form, to wit:
    “The United States oe America,
    “ Western District of North Carolina :
    
    “ To the jailer of Mitchell County, greeting:
    “ Whereas, at a commissioner’s court, held at Bakersville, on the 10th day of June, 1888, John Jones was arraigned before me for violation of the United States internal revenue law, and was held to bail for his appearance before J. M. Stafford, United States commissioner, on the 15th day of June, 1888, and having failed to offer said bond, it is ordered that he be committed to the jail of Mitchell County, to await his trial, and to be further dealt with according to law. You will, therefore, receive the body of the said John Jones, and him safely keep to await his said trial.
    “ Witness ray hand and seal this 10th day of June, 1888.
    “J. M. Stafford,
    
      U. S. Commissioner. ”
    These warrants were all executed by lodging the prisoners in the jail of Mitchell County, North Carolina, at Bakersville, the couuty-seat, and the town at which the claimant held his office. There are no other conveniences for the keeping of prisoners at said town of Bakersville except the jail, and the jailer, under the decisions of the State courts, will not receive any prisoner without a warrant of commitment. These commitments were in cases which were continued from one day to another, and the parties were required to give bail for their ax>pearance, but failed to give such bail.
    The fees so disallowed amounted to $30.
    IY. The rules of the United States courts for the western district of North Carolina, adopted in 1885, and continued in force, provide, among other things, that—
    “ In all cases where defendants and sureties are recognized, there must be filed written affidavits in justification of bail to the amount required, in real estate, over and above all exemptions allowed by law, and liabilities secured by any lien.’7
    The claimant, as commissioner, charged at the rate of 25 cents for the acknowledgment of each person to a bail bond, 15 cents a folio for affidavits of justification of such bonds, and. 10 cents for (he oath of each person making such affidavit of justification. Said accounts were approved by said circuit court, but the accounting officers of the Treasury disallowed in some cases more than one acknowledgment to each bail bond, and in others all acknowledgments, on the ground that the same -were unnecessary, amounting to $89.50. They also disallowed charges for drawing affidavits of justification and oaths thereto, amounting to $30.40, being a total disallowance for such acknowledgments, affidavits, and oaths of $119.90.
    For the claimant’s form and manner of acknowledging bonds, see Finding X. •
    Y. For drawing complaints, upon which to found criminal process, the claimant charged fees at the rate of 15 cents a folio, amounting from July 1,1887, to June 30,1888, to $37.80. These fees were duly approved by the court, but disallowed by the accounting officers, on the ground that no fee for such service was provided in the fee-bill.
    YI. The claimant also charged for entering the return on each writ issued by and returned to him at the rate of 15 cents, but such charges for entering returns on writs, although approved by the said court, were disallowed, amounting to $40.35.
    Y1I. The claimant also charged for filing the final bonds in cases where the defendant was held for court at the rate of 10 cents each, but his accounts i'or the same, although approved by said court as aforesaid, were disallowed by the accounting officers of the Treasury, amounting to $1.90.
    YIII. Said accounting officers also disallowed the sum of $4(5.45 fees in several cases, on the ground that said cases should have been joined with certain other cases against the same or other parties. From the evidence before the court, it appears the offenses were similar but mot the same, nor were they committed at the same time.
    IX. The rules of said court also required as follows:
    ‘‘The commissioners aforesaid are further ordered to take in-writing, and send to the district attorney, a statement of the testimony of each witness examined in cases where defendants-are held for trial, and sucb statements must be signed by the witnesses and tested by the commissioners.”
    The claimant, in pursuance of this rule, wrote the testimony in cases where the accused were held for trial, and charged 10' cents a folio for the same; but his fees therefor, amounting to $36.50, though approved in his accounts by the court, were-disallowed by the accounting officers.
    X. For drawing recognizances for appearance at court the the claimant charged for three folios each. The accounting-officers allowed for only two folios each. This reduction amounted to $22.50. These charges of three folios each are made by first making a bond in the following form :
    “ United States of Amerioa,
    “ Western District of North Carolina :
    
    “ Know all men by these presents that we, John Jones, as-principal, and John Rowe and William- Duncan, as sureties, are held and firmly bound unto the United States of America in the sum of three hundred dollars, lawful money of the United States, to the payment whereof well and truly to be made, we hereby bind ourselves, our heirs, executors, and administrators, jointly and severally, firmly by these presents.
    “Signed and sealed with our seals, and dated at Bakersville, N. C., this 31st day of October, one thousand eight hundred and eighty-eight.
    “The condition of the foregoing obligation is such:
    “That if the above bounden John Jones shall make his personal appearance at the next term of the district court of the United States to be held at Asheville, N. C-, on the first Monday in November next, to answer to the charge of the United States for illicit' distilling, and not depart the court without leave, then this obligation to be null and void; otherwise to remain in full force and effect.
    “John Jones. SEAL.
    “John Rowe. SEAL.’
    “William Dunoan. ’seal.’
    “ Witness;
    “J. M. Stafford,
    “ U. S. Commissioner.”
    
      Then superadding to that a recognizance in the form following :
    “ Acknowledgment of both principal and surety was taken in each case for which fees are charged. After bond is taken, signed, the acknowledgment is about as follows:
    “ Each of you, A and B, acknowledge yourselves indebted to the United States in the sum of $200, lawful money, be collected of your goods, lands, and tenements, to be void on condition that the within-named defendant A shall make his personal appearance at the next term of the United Spates district
    court, beginning on —'-, to be held in the city of Ashe-
    viiL', there and then to be dealt with according to law, and not •depart the court without leave.”
    XI. The claimant also charged at the rate of four folios each ■at 15 cents a folio for orders for the payment of witnesses, but the accounting officer of the Treasury cut the same down to ■two folios each, disallowing on this item the sum of $42.85. The following is a sample of these orders, and contains 268 words:
    THE UNITED STATES OE AMERICA Versus JAMES G. WISEMAN.
    
      Abstract of compensation to witnesses, for their attendance and travel in coming to and returning from a commissioner*»» court, held at Balcersville, before J. M. Stafford, United States commissioner for the western distinct of North Carolina, on tke'^Otliday of June and7thA%bgust,i888. Charge: III. retailing spiritous liquors.
    
    
      
    
    •‘Having sworn and examined on oath the persons herein named, I find that they have severally attended this court as witnesses in the aforesaid cause, on the part of the United States, the number of days herein specified; that they have respectively traveled the number of miles herein stated, and that they are severally entitled to the sum set opposite their respective names. It is therefore hereby ordered that the marshal pay each of said witnesses accordingly, and that the-payments made in conformity with this order be ratified and confirmed.
    ‘•In testimony whereof I have hereunto signed my nam‘6' officially, this 7th day of August, A. D. 1888.
    “J. M. Stafford,
    “ U. S. Commissioner?
    
    Prom this it appears that the claimant is entitled for services described in this finding to $14.95, more than he has been, allowed and paid.
    
      Mr. George A. King for the claimant.
    
      Mr. F. P. Dewees (with whom was Mr. Assistant Attorney-General Cotton) for the defendant.
   Scofield, <7.,

delivered the opinion of the court:

The claimant was a commissioner of the circuit court of the-United States for the western district of North Carolina from October 20,1885, to June 30, 1887. His accounts for services during this time having been properly made out and duly approved by the court, were presented to the accounting officers of the Treasury for payment. Part of the accounts were allowed and paid, but the charges set out in the several findings of the court were disallowed.

The first disallowed item of charges is for thirty-eight days-in attending to cases, at the rate of $5 a day, amounting to $190. Upon these days the only service rendered consists of an entry of the complaints upon the docket, arraignment and plea of the person charged, granting a continuance on motion, of one of the parties, fixing the amount of bail, and passing upon the sufficiency thereof.

The same question has been before the court in several cases. In Harper vs. The United States (21 C. Cls., 56) the subject was-carefully considered by the court and decided in favor of the claimant. The question was reconsidered in the Jones Case (post), and our former rulings were; there adhered to. -This-latter case, on appeal, was recently affirmed by the Supreme-Court. (134 U. S. R., 483).

The second disallowed item of charges is for making and •sending up to court copies of process under section 1014 of the Revised Statutes, in cases where, by rule of court, the original papers were required. In compliance with the rule of court the claimant sent up the original papers, for which he has charged and been paid the legal fees. He also made and sent up copies of the same papers, and now claims compensation for this additional service. These charges amount to $67.20.

The same question arose in the case of Churchill v. The United States (ante.) In deciding the question in favor of the claimant in that case the court cited Ravesies’ Case (23 C. Cls., 299) which involved the same question and in which the court said:

The claimant is allowed but one fee for the same service in substance; and as he is not allowed for returning the original papers, if he makes copies under the requirements of section 1014 he is allowed for thatservice. A commissioner has a right to do in the discharge of his official duty whatever the law requires, and is entitled to charge whatever the law allows for such service; and the fact i hat he does something else, amounting in substance to the same thing, if for the latter service he gets no pay, he will not be deprived of his compensation for what the law requires him to do.”

Following the decisions in these two cases this item of charges should be allowed.

The third disallowed item of charges consists of fees for temporary warrants of commitment, where the hearing was adjourned from day to day. The warrants were executed by lodging the prisoners in the county jail. There were no conveniences for keeping them outside the jail, and the jailer refused, under decisions of the State court, to receive them without a warrant of commitment.

Adhering to the doctrine laid down in Turner’s Case (19 C. Cls. R., 629), Gilbert’s Case (23 id., 218), and Davies’ Case (23 id., 468), the court is of the opinion that the facts shown to exist in the pending cases bring them within the exception referred to in the cases cited. These fees amount to $30.

The fourth item of disallowed charges consists in part of fees for taking the acknowledgment of bail bonds. These bonds are drawn up in the usual form, conditioned for the defendant’s appearance at court, signed by the defendant and his surety, and witnessed by the commissioner. In addition to-this bond, the claimant also took from the parties, with the same penalty and condition, a recognizance, which he calls an acknowledgment of the bond. The objection to allowing these fees is twofold. First, the law does, not require the bond to be acknowledged, nor does the acknowledgment add in any way to its validity. Second, the bonds were not, in fact, acknowledged. The alleged acknowledgments make no allusion whatever to the bonds. They are simply recognizances, entirely independent of the bonds, though requiring the defendant under the same penalty and conditions to appear at court.

Another question in the fourth item of disallowed charges is whether the claimant is entitled to feos for drawing affidavits to be signed by the defendant and his sureties, in order to prove their financial responsibility. This is a part of the defendant’s case. The evidence of his surety’s responsibility should be furnished by himself.

The fifth item of disallowed charges is composed of fees for drawing complaints, to be sworn to and signed by the prosecutor. This service is not required by laws of the United States, nor is it alleged that it is required by the laws of North Carolina for committing magistrates of that State. Under these circumstances the commissioner, acting in a judicial capacity, need not be consulted until the complaint is laid before him. Then he must determine whether it is of such a character as to authorize the issuing of a warrant of arrest.

The sixth item of disallowed charges is for noting on his docket the marshal’s return upon subpoenas and other process. The commissioner is allowed fees for issuing these papers and hitherto for keeping a docket, but no fee appears to have been prescribed for this brief notification.

The seventh item of disallowed charges is for filing in his office the final bail bonds. These bonds are to be- sent to and filed in the court; not in the commissioner’s office.

The eighth item of charges was disallowed by the accounting-officers on the ground that these cases should have been joined with certain other cases. By evidence taken in the court it appears that the offenses, although similar, were not the same; nor were they committed at the same time. They could not therefore have been properly joined in the same proceeding.

The ninth item of disallowed charges is for making written notes of testimony taken by the commissioner under a rule of court and sent to the district attorney.

This item comes within the principleinvolved in the decision of the court in Ravesies’ Case (23 C. Cls. R., 299), by the allowance of the fees charged in Findings III and Y of that case (pp.. 300 and 301), and should therefore be allowed. .

The tenth item of disallowed charges is for drawing a bond, and also a recognizance conditioned under penalty for defendant’s appearance at court. The two papers together make three-folios, the bond making two and the recognizance one. The claimant can not charge for both. When a bond is taken a recognizance is neither required nor necessary. The claimant has. been allowed and paid for the bond, and is not entitled to more.

The eleventh item of disallowed charges is for making out witness pay-rolls for the use of the marshal, and charging at the rate of four folios each. He has been allowed and paid at the rate of two folios each. The findings show that the sample-pay-roll contains 268 words. Supposing all the pay-rolls contained the same number of words, the claimant would be entitled to claim $14.75 in addition to the amount already paid.

Judgment will be entered for the claimant in the sum of $355.10.  