
    JOHN F. KNOX v. THE UNITED STATES.
    [No. 15051.
    Decided June 11, 1888.]
    
      On the Proofs.
    
    A United States commissioner makes out Ms account, which is approved! by the district attorney and presented to the court; but the court declines to act upon it. The commissioner in Texas keeps a docket of criminal proceedings similar to that prescribed for magistrate» by the law of that State before the court orders that one be kept.
    I. The approval of a commissioner’s account by the court, as prescribed.' by the Act 27th February, 1875 (18 Stat. L., p. 333), is not a necessary prerequisite to payment. If he verifies and presents his account as is required by law, and the court declines to act upon it, his right to compensation can not thereby be defeated. [Affirmed, November, 1888.]
    II. Where a commissioner in Texas followed the established practice in that State by keeping a docket in criminal cases, before it was required by the order of the Circuit Court, he was entitled to his fees therefor.
    
      The Reporters’ statement of the case:
    The following are the facts as found by the court:
    I. The claimant was a commissioner of the Circuit Court of the United States for the northern district of Texas from June 17,1879, to December, 1883.
    II. October 20, 1881, the Circuit Court Qf the United States for said district, in compliance with a request of the Attorney-General, made an order requiring, among other things, that eacli of tbe commissioners of said court should keep a docket, in which he should enter on the day the transaction should occur the issuance of each warrant, the name of the person upon whose complaint and request the same was issued, the nature of the offense, and the name of the officer to whom the warrant was delivered for service, together with the proceedings had under said warrant; that there should also be entered therein the names of the witnesses present and examined and their fees, the name of the guard, if any, and his fees, and also the marshal’s and deputy marshal’s fees, together with the mileage and expenses allowed by law ; and the said order was continued of force.
    III. From July 10,1879, to June 23,1880, petitioner, as such commissioner, issued warrants in seventy cases, in sixty-two of which issue was joined and testimony taken, and in eight of which issue was not joined, the defendant was discharged, and no testimony taken. From the said June 23, 1880, to October 20,1881, he issued warrants in thirty-five cases, in twenty six of which issue was joined and testimony taken; in six of which issue was joined, but no testimony taken, and in three of which issue was not joined, the defendant was discharged, and no testimony taken. From the said October 20, 1881, to March 31, 1883, he issued warrants in thirty-eight cases, in thirty of which issue was joined and testimony taken j in five of which issue wasjoinedbut no testimony taken, andin three of which issue was not joined, the defendant was discharged, and no testimony taken. And he duly made his docket entries in each and all of the cases named in this finding, as required by said order, both before and after the making thereof.
    IV. February 16, 1886, the claimant made out and verified by oath his account of fees for keeping said docket, and sent it to the United States district attorney, Charles B. Pearre, to be presented to the court. Subsequently, he wrote to the clerk of the court, inquiring about his accounts, and received the following reply:
    “ Dallas, 2, 25, ’86.
    “Dear Sir: In reply to your inquiry, lean state that y’r ac. must be in the hands of the U. S. attorney. It has notbeen approved by the court yet.
    “ Respectfully, &c.,
    “A. J. Houston,
    “ Cleric U. 8. Cir. O’i.”
    
      Thereafter he wrote to the district attorney, and received the following reply:
    “DEPARTMENT OP JUSTICE,
    “ Waco, March 29th, 1886.
    “ J. F. Knox, Esq.,
    “ Marlin, Texas:
    
    “ Dear Sir : Your favor of 19th ultimo come duly to hand and would have been replied to sooner, but 1 have been sick nearly every day since I rec’d it. I ottered to present your account at Dallas, and Judge McCormick refused to receive and approve it, and suggested that I had better call for your books and examine them myself and see if the ac’pt was correct. If you will bring up your books before or during the term of our U. S. D. Ct. at Waco, I will examine them and act upon your ac’pt.
    “ Yours, very truly, etc.,
    “Chas. B. Pearre,
    
      “U. 8. AthjP
    
    Soon after, the claimant took his books to Waco and left them with the district attorney for examination. Some time thereafter, the district attorney returned the books to the claimant and informed him that Judge McCormick would not act on the account. Subsequent to this, to wit, June 23, 1886, the claimant filed his petition in this court.
    V. Part of these fees, amounting to $194, accrued prior to Jnue.23, 1880. Another part, amounting to $93, accrued after June 33, 1880, but prior to October 20, 1881. The part of the fees accruing after October 20,1881, amounts to $103.
    
      Mr. George A. King for the claimant.
    
      Mr. F. P. Deioes (with whom was Mr. Assistant Attorney-General Howard) for the defendants.
    Prior to the order of court, whilst the keeping of a docket might have been a great convenience to the commissioner and incidentally of use to the Government as a matter of reference, it was neither required by law or authorized by law. It was not until that time recognized as a duty incident to the office of commissioner. It was, therefore, not paid for.
    By suggestion from the Department of Justice and by order of court, the duty of keeping a docket was imposed upon the commissioner as an incident of his office. The commissioner’s court not being a court of record, it is possible that the commissioner might, without subjecting himself to any penalty, have refused to keep a docket. But with the recognition of his right t.o keep a docket both by the Department of Justice and by order of court, as an incident to his office, then, as was held in the Wallace Case (United States v. Walloce, 110 IT. S., 398), he was entitled to the same fees as a clerk of the court for like service.
    But as the duty was not, without authority, an incident of' his office, it follows that he is not entitled to pay for an unauthorized performance, however useful the same might be. Without the order of court, it was not pretended a charge could be made. Such order was not retroactive.
    Whilst it is not contended on the part of the defendant that the services were not actually performed by claimant, it is submitted that he is without legal remedy in this court.
   Scofield, J.,

delivered the opinion of the court:

The claimant was a commissioner of the Circuit Court of the United States for the northern district of Texas, from June 17, 1879, to December, 1883.

Duriug- this time he kept a docket, in which he recorded the-proceedings before him in the manner required by the Circuit Court of that district. For this service, his fees, made up according to sections 847 and 828 of the Bevised Statutes, amount to $390.

The first objection to a recovery raised by the defendants is based upon the fact that the United States court has not passed upon the claim, as required by law, and ‘‘entered of record an order approving or disapproving the account.”

This omission was not occasioned by any neglect or fault of the claimant. He prepared and verified his account, as required by law, and through the district attorney presented it to the court. That officer was directed by the court to retain it and make a personal examination of the claimant’s docket. This was done, and the account again presented to the court, and the court again declined to take action thereon:

“The law in regard to the duties of the courts in approving these accounts is contained in the first section of the Act of February, 27, 1875 (18 Stat. L., 333), as follows:
“That before any bill of costs shall be taxed by any judge, or other officer, or any account payable out of the money of the United States shall be allowed by any officer of the Treasury, in favor of clerks, marshals, or district attorneys, the party claiming such account shall render the same, with the vouchers and items thereof, to a United States Circuit or District Court, and in presence of the district attorney, or his sworn assistant, whose presence shall be noted on the record, prove in open court, to the satisfaction of the court, by his own oath, or that of other persons having- knowledge of the facts, to be attached to such account, that the services therein charged have been actually and necessarily performed as therein stated, and that the disbursements charged have been fully paid in lawful money; and the court shall thereupon cause to be entered of record an order approving or disapproving the account, as may be according to law and just. United States commissioners shall forward their accounts, duly verified by oath, to the district attorneys of their respective districts, by whom they shall be submitted for approval in open court, and the court shall pass upon the same in the manner aforesaid. * * * Nothing contained in this act shall be deemed in any wise to diminish or affect the right of revision of the accounts to which this act applies by the accounting officers of the Treasury, as exercised under the laws now in force.”

The question now raised has been substantially decided by this court in several cases. In Turner’s Case (19 C. Cls. R., 629), the court said:

“In our opinion, the duty imposed upon the court of examining and approving or disapproving of accounts which are not-to be taxed m cases pending therein,' and are not chargeable to any fund within its control, but are payable out of the public treasury after review by the accounting officers, is not a judicial power, the exercise of which constitutes the approval or’ disapproval a judicial determination of the rights of the parties.' A similar question, almost identical with this in principle, was-discussed in the case of The United States v. Ferreira (13 How., 40), and we understand the views there expressed in the opin-ion of the court to warraut the conclusion which we have» reached on that point. (See also Gordon’s Case, 7 C. Cls. R., 1, and Langford’s Case, 101 U. S. R., 344.)
“The statute having made such accounts, after approval or disapproval, subject to revision by the accounting officers of the Treasury, in the ordinary processes of accounting, the order of the court is only prima facie evidence of the amount due thereon from the United States. That evidence may be rebutted by either party when the account is reviewed, either in the Treasury Department or by this court, in a suit brought upon it (United States v. Smith, 1 W. & M., 184).”

In the Wallace Case (20 C. Cls. R., 273), the court said:

“ The Circuit Court, iu the allowance of the claim, must have taken this view of the law, and while this court has held that the order of the court is not binding upon the accounting- officers, it is prima facie evidence of the amount due, and the only question arising is a question of law.”

In Water’s Case (21 C. Cls. R., 30), the court, in construing the last sentence of section 1 of the act of 1875, said:

“This means nothing more than that the approval or disapproval by the court shall not be held to bo a judicial act, conclusive upon all parties, but shall be regarded merely as a step or process in the executive business of settling accounts.”

Part of this account, amounting to $191, accrued prior to June 23, 1880, more than six years before the claimant filed his petition in this court. This part of the claim is barred by section 1069 of the Revised Statutes. (Patterson’s Case, 21 C. Cls. R., 322.)

Another part of the claim, amounting to $93, accrued between Juno 23, 1880, and October 20, 1881, which was prior to the order of the court requiring the commissioners to keep dockets.

This fact presents a new question. The Supreme Court has decided that a commissioner who keeps a docket, by the order of the court, is entitled to docket fees. Is he entitled to such fees when he keeps a docket and performs the same service without an order from the court?

Is it not the duty of every commissioner, independent of court orders, to preserve a short memorandum of proceedings before him ? Otherwise he must carry the proceedings in his memory, and give them out to persons whose right and duty it is to know them “according to his best recollection.” Such mem-oranda of proceedings make up a docket. Such a memorandum or docket is certainly important, if not indispensable for the orderly transaction of official business.' To be sure the commissioner’s office is not a court of record, but it is an office in which a large amount of business is transacted, which deeply concerns the welfare of individuals and the general public. It is very important that brief minutes of such business should be preserved. Is it not the duty of the commissioner to keep such a docket, whether ordered by the court or not; and if so, is he not entitled to fees as much in the one case as the other?

. Some doubt has been expressed as to the power of the Attorney-General or the judge to impose upon commissioners duties not otherwise required by law.. In this view of the commissioner’s duty, all doubt is removed. The order of the court was simply a ruling or decision upon the officer’s duty, already existing, as an incident of his office.

In this particular case, however, there is something more.

Section 1014- of the Revised Statutes is as follows:

“For any crime or offense against the United States, the offender may, by any justice or judge, of the United States, or by any commissioner of a Circuit Court to take bail, or by any chancellor, judge of a supreme or superior court, chief or first judge of common pleas, mayor of a city, justice of the peace, or other magistrate of any State where he may be found, and agreeably to the mual mode of process against offenders in sueh States, and at the expense of the United States, be arrested and imprisoned or bailed, as the case may be, for trial before such court of the United States as by law has cognizance of the offense.”

By article 899 of the code of criminal procedure of Texas, justices of the peace are required to keep dockets, in which to record all the proceedings in criminal cases.

The claimant, following his own conception of his duty as a committing magistrate, and his own construction of these statutes, kept a docket, substantially as required by the subsequent order of the court.

We can see no reason why. a faithful commissioner, who correctly comprehended his duty and voluntarily performed it, should fare worse than one who performed the same service under judicial coercion.

For the fees that accrued subsequent to October 20, 1881, amounting to $103, the claimant is entitled to recover, under the decision in the Wallace Case above cited.

Judgment will be entered in favor of the claimant in the sum of $196.  