
    ABNER HAZELTINE v. THE UNITED STATES.
    [No. 15722.
    Decided June 8, 1891.]
    
      On the Proofs.
    
    The suit is brought by a circuit court commissioner, for fees in excess of $10, where a party was charged with violations of the elective franchise law.
    The compensation of a circuit court commissioner, in cases where the defendants are charged with violations of the elective franchise law, is subject to the provision of the Revised Statutes, § 1986, and limited to a fee of $10 in each case.
    
      The Reporters' statement of the case:
    A large number of items were presented by this case, but, with the exception of the tenth, all have been determined by decisions in other cases.
    The opinion of the courtis confined to these items. The following are the facts as found by the court:
    I. Plaintiff, Abner Hazeltine, was a commissioner of the Circuit Court of the United States for the northern district of New York from the 1st day of April, 1886, to the 31st day of December, 1889, duly qualified and acting.
    II. During said period he made up his-accounts for services in criminal cases, duly verified, and presented the same to the United States court for approval in the presence of the district attorney, and an order approving said accounts as being just and in accordance with law was entered of record. They were then presented to the accounting officers of the Treasury for payment. Part was paid, but these officers refused payment for the items included in finding in.
    
      III. (1) For bearing and deciding on criminal charges, in deciding on amount of bail and sufficiency thereof, or in hearing and deciding on motion for continuance, 132 days, in as many criminal cases, at $5 per day, $660.
    (2) For drawing final recognizances or bonds of defendants held for court in excess of 4 folios and not exceeding 5 folios, at 15 cents per folio, $68.45.
    Four folios each have been paid for at the Treasury, and this item is for the additional 1 folio. The form of the recognizance charged for was the one adopted and approved by the United States court for the district, and contains from 5 to 6 folios.
    (3) For making a record of ideas for defendants of “not guilty ” on docket in each case, 1 folio each, at 15 cents per folio, .$41.50.
    What portion of these entries, if any, were made prior to August 4, 1886, does not appear.
    (4) For making copies of process to be returned into the clerk’s office in cases held for court, at 15 cents per folio, $30.55.
    These copies were actually returned into the clerk’s office as charged.
    (5) For making reports of testimony of witnesses in various cases where defendants were held for court and filed with the district attorney by order of court, at 15 cents per folio, $93.15.
    These reports have been made by claimant since his appointment in 1879, have been charged in his accounts, approved by the court, and paid by the accounting officers of the Treasury prior to April 1,1886. The Circuit Court made a special order, dated the 17th day of December, 1889, requiring this service to be performed for the benefit of the United States.
    (6) For issuing warrants of temporary commitment of defendants to jail in default of bail, entering returns of marshal, and filing said warrants, at $1.25 each, $30.95.
    The warrant of arrest was returned by the marshal with the prisoner to the claimant, and the jailer, who was not a deputy marshal, would not receive the prisoner without a warrant of commitment.
    (7) For making copy of order for the payment of witnesses for their attendance and mileage, and duplicate for marshal to pay, three folios each, at 15 cents per folio, $188.35.
    This copy and duplicate order were required by the marshal, one to file as a voucher with his account at the Treasury Department, and tbe other to file with his duplicate account in the clerk’s office.
    (8) For drawing affidavits of complaint setting forth an offense on which to issue warrants of arrests, disallowed in some cases and in excess of three folios disallowed in other cases, at 15 cents per folio, $28.20.
    (9) For taking separate acknowledgments of defendants and sureties to final bonds for court, at 25 cents each. It does not appear that these acknowledgments were taken at different times.
    (10) For services is discharge of poor convicts in excess of a per diem of $5 in each case, as follows:
    1889, August 28. — Filing petition to discharge defendant as a poor convict.$0.10 .
    Drawing notice to United States attorney to attend September 2, one folio.15
    Issuing warrant to produce defendant September 2. 1.25
    September 2, drawing oath of defendant, one folio, 15 cents; administering oath, 10 cents; and filing same, 10 cents.35
    Drawing discharge of defendant, 2 folios, 30 cents; filing same, 10 cents. .35
    Making report of proceedings to file in clerk’s office, U. S. court, 11 folios, with certificate. 1.35
    Copy of warrant to file in clerk’s office. 45
    September 2. — One day for examination. 5.00
    9. 00
    (11) For services in cases where defendants were charged with violations of the elective franchise (crimes named in § 5511, Rev. Stat.), all fees in excess of $10 in each case disallowed, $112.85.
    (12) For issuing subpoenas for parties having knowledge of the offense committed to give their depositions to support the affidavit of complaint before issuing the warrant of arrest, at 25 cents each, $23.45.
    (13) For drawing complaints, issuing warrants of arrest, and subpoenas in various criminal cases not allowed until cases had been finally disposed of, $48.70.
    The proof shows that the claimant rendered his accounts quarterly, and included therein all the services performed during that quarter, whether these cases were finally decided or not. He was instructed to make up his accounts quarterly or semiannually, which he did, including each item of fee at the time the service was performed.
    
      (14) From the 1st day of October, 1886, to the 31st day of December, 1889, the claimant, as such commissioner, issued warrants in 229 cases, in 173 of which issue was joined and testimony given, and he duly made his docket entries in each and all of said cases. His accounts for fees for keeping said dockets were duly verified by his oath and presented to the Hnited States court for said district in the presence of the district attorney, and orders approving said accounts were duly entered of record. In said accounts, as approved by the court, he was allowed a fee of $3 in each case where issue was joined and testimony given, and said fees have not been paid, $519.
    Upon the foregoing facts the court decided as conclusions of law as follows:
    Under finding III:
    Item X, this charge is allowed___ $660.00
    Item II, this charge is allowed. '68.45
    Item III, this charge is not allowed.
    Item IV, this charge is allowed. 30.55
    Item V, this charge is allowed. 93.15
    Item VI, this charge is allowed. 30.95
    Item VII, this charge is allowed. 188.35
    Item VIII, this oharge is allowed, as required for justices of the peace in New York.,. 28.20
    Item IX, this charge is not allowed (II. S. v. Barber, U. S. v. Ewing).
    Item X, this'charge is allowed. 9.00
    Item XI, this charge is not allowed (see Opinion).
    Item XII, this charge is allowed (see New York Code, criminal procedure). 23.45
    Item XIII, this charge is allowed.-. 48.70
    Item XIV, this charge is not allowed (Act August 4, 1886).
    Total.1,180.80
    Upon the whole case judgment for plaintiff in the sum of $1,180.80.
    
      Mr. Charles G. Lancaster for the claimant.
    
      Mr. F. P. Pernees (with whom was Mr. Assistant Attorney■ General Cotton) for the defendants.
   Dates, J.,

delivered the opinion of the court:

Section 198G prescribes the fees for district attorneys, marshals and their deputies, and clerks of court “ in cases under the foregoing provisions; ” and provides that “ where the proceedings are before a commissioner he shall be entitled to a fee of ten dollars for his services in each case, inclusive of all services incident to the arrest and examination.” The cases, then, in which the commissioner’s fee is thus fixed and limited, are those included in provisions of the Revised Statutes which precede section 1986. These antecedent provisions so far as they can apply to the subject-matter of section 1986 are embraced under the title (xxiv) relating to “ Civil Rights,” which provides a remedy in damages for those impeded in the exercise of the right of suffrage. These sections of the law do not refer to the acts of the voter himself and they affix no penalty to any illegal act upon his part; on the contrary, they aim simply to protect him in the peaceful exercise of his rights and duties.

The plaintiff herein, a United States commissioner, charges against the Government, in his accounts for fees, certain sums for services in cases where the defendants were accused of violations of the electiva franchise; these fees he has charged as in other criminal cases, such as those under the revenue laws, but the Treasury allows him but ten dollars a day in each case, upon the theory that section 1986 is the standard by which his compensation should be measured in these cases. For the difference between this allowance and his charge plaintiff now sues.

The offense alleged in each of the cases in question was that of illegal voting; it was the voter’s offense — not that of a third party — and was an offense included in a subsequent section of the Revised Statutes, to wit, section 5511. As the offense is not in terms set forth in Title xxiv (Rev. Stat.), the cases did not fall “ under the foregoing provisions,” unless section 5511 has been imported into those provisions by some other section antecedent to section 1986. It is claimed that section 1982 does this, and warrants the action of the accounting officers. That section provides that commissioners (and other officers therein enumerated) “are authorized and required * * * to institute prosecutions against all persons violating any of tbe provisions of Chapter vii of the Title ‘ Crimes.’ and to cause such persons to he arrested and imprisoned or bailed for trial,” etc.

It will be npted that if defendants’ contention here be right, then the commissioner can receive only the fixed fee of ten dollars for all services incident to the arrest and examination of any person alleged to have committed any of the crimes enumerated in Chapter vii of the Title “ Crimes.” That chapter is limited to “ crimes against tile elective franchise and civil rights of citizens;” it provides for the punishment of those preventing citizens from voting; of those intimidating voters by bribery or threats; of those conspiring to injure or intimidate citizens in the exercise of civil-rights; of those who deprive citizens of civil rights under color of State laws; of those who vote or register fraudulently; of those who obstruct the execution of process in civil-rights cases, etc. That is, the chapter enumerates as crimes and punishes as such the offenses against the right of suffrage to which Title xxrv refers simply as the ground of a civil action for damages. Offenses not found in Title xxiv are found in this Chapter vii ; but they are all offenses against the free exercise of civil rights, and are such as can not be the subject of an action for damages by an individual, being, as is illegal voting, an injury to the State and not to a citizen. Title xxiv does not provide that the acts therein enumerated shall be criminal, nor does it attach any punishment to the illegal acts therein named; that title simply gives to the injured citizen a right of action for damages; it does no more, unless we import into it the seventh chapter of the Title “ Crimes.”

But Title xxiv certainly contemplates some criminal proceeding provided for elsewhere, for it speaks (§ 1982) of prosecutions “ against all persons violating any of the provisions of Chapter vii of the Title ‘Crimes;’” it orders that such persons shall be “ arrested and imprisoned or bailed for trial; ” that the number of commissioners shall be increased (§ 1988), “ so as to afford a speedy and convenient means for the arrest and examination of persons charged with the crimes referred to ” in section 1982, and the only crimes referred to in the latter section are violations of the provisions of said Chapter vii of the Title “ Crimes.” Another section (1984) authorizes the commissioners to appoint persons to execute warrants, and these persons are given broad powers. They may summon to their aid the bystanders, the posse comitatus of the proper county, or “ such portions of the land, or naval forces of the United States, or of the militia, as may be necessary to the performance of the duty with which they are charged." All these provisions precede section 1986, which prescribes the commissioner’s fee, and there are other clauses, framed in the same spirit and intent, which follow that section. As Title xxiv does not contain the definition of a single crime or provide for the punishment of a single offender against the law of civil rights otherwise than by a private action for damages, all these provisions we have cited are vain and useless unless Chapter vn, under which crimes of this description are punished, is read as part of this Title xxiv.

We hold that the construction placed by the accounting officers upon section 1986 was correct; therefore' this item of claim is not allowed. The action of the court upon the other items set forth in the petition and in its appendix is shown in the conclusions of law.

Judgment for plaintiff in the sum of $1,180.80.  