
    FRANK IVES v. THE UNITED STATES.
    [No. 16382.
    Decided April 22, 1889.]
    
      On the Proofs.
    
    A statute of Minnesota requires a magistrate to examine a complainant and his witnesses and reduce the complaint to writing before issuing a warrant. A commissioner in that State proceeds accordingly, ■ and seeks to recover his per diem “for hearing and deciding on-criminal charges."
    
    
      I. The Revised Statutes, §847, pjrovide for commissioners a fee of f>5 per diem “for hearing and deciding on criminal charges.” The service contemplated is judicial, not clerical.
    II. When the examination of a complainant and his witnesses is prior to the issue of a warrant, and by the commissioner alone, no counsel being present, and the defendant not before the commissioner, there is no controversy, and the service is clerical.
    
    
      The Reporters’ statement of the case :
    The following are the facts as found by the court:
    I. The claimant has been a commissioner of the Circuit Court of the United States for the District of Minnesota from 1882 to the present time.
    II. The claimant’s accounts for fees in hearing and deciding on criminal charges in a number of cases duriug the years 1883,1884,1885,1886,1887, and 1888, verified by his oath, were presented to said court in the presence of the district attorney, and an order approving the same was entered of record.
    III. The charges in these accounts amounted to $365, made up as follows: Charges were made at $5 per day for fifty-sis days, amounting to $280, for the actual examination and hearing of the complaining witness and such other witnesses as were produced by him prior to issuing warrants; charges were made for sixteen days at $5 per day, amounting to $80, for hearing motions for continuances, which were argued by the district attorney or defendant’s counsel for such continuance; another charge, $5 in amount, is for one day on which there was an actual hearing and decision upon the sufficiency of bail. Said account also in eluded an other day, amounting to $5, said oneday beingin August, 1882, more than six years before the commencement of this suit, making the entire account amount to $370, whereof $365 is for services performed within six years previous to the commencement of this suit.
    In 1866 the .Department of the Interior, which then had supervision of commissioners’ accounts, had occasion to construe this phrase in section 847, Eevised Statutes :
    “ For hearing and deciding on criminal charges, five dollars a day for the time necessarily employed.”
    
      The Department thus ruled :
    “ The terms hearing and deciding embrace the commissioners’ acts and rulings iu the case, as well as the trial and determination of the issues of the facts, in the technical sense of those words.”
    A new rule was adopted in 1883 whereby they would all have been rejected if presented, and has been adhered to since, and said accounts were therefore not presented to the accounting officers of the Treasury.
    
      Mr. George A. King for the claimant. *
    
      Mr. JP. P. Dewees (with whom was Mr. Assistant Attorney-General Howard) for the defendants.
    
      
      
         See Ravisies Case (ante) as to the right of a commissioner to recover fees per folio, etc., in preparing the affidavits.
    
   Davis, J.,

delivered the opinion of the court:

This is a claim made by a United States commissioner for fees, which it is alleged would, under the rules now in force, be disallowed by the accounting officers of the Treasury if presented to them for payment. Eighty dollars of the charges are for hearing and deciding motions for continuance where motions were made and argued by .the district attorney or defendant’s counsel for such continuance. Another charge, $5 in. amount, is for one day on which there was an actual hearing and a decision upon the sufficiency of bail.

These charges fall within pievious rulings of the court and are allowed. (Harper v. The United States, 21 C. Cls. R., 56; Kavesies v. The United States, 33 C. Cls. R., 299.)

The remainder of the charges are for the actual examination and hearing of the complaining witness and such other witnesses as were produced by him preliminary to issuing the warrant; this plaintiff claims was in accordance with the following statute of Minnesota, the State where plaintiff resides:

11 §141. (Sec. 132.) Proceedings on complaint made — warrant— its contents. — Upon complaint made to any justice by any constable or other person that any such offence has been committed within the county, he shall examine the complainant on oath, and the witnesses produced by him, and reduce the complaint to writing, and cause the samé to be subscribed by the complainant; and if it appears that such offence has been committed, the said justice shall issue his warrant, reciting the-substance of the complaint, and requiring the officer to whom. it is directed forthwith to arrest the accused, and to bring- him before such justice, or some other justice of the same county, to be dealt with according to law; and, in the'same warrant, may require the officer to summon such witnesses as shall be named therein, to appear and give evidence at the trial.” (General Statutes of Minnesota, chap. 65.)
This case differs from the cases of Harper and Ravesies in this, that the hearings were had prior to issuing a warrant, and for the purpose of deciding whether it should be issued.
Plaintiff contends that the difference is not material, and that the case at bar is not distinguishable from those already decided. He relies principally upon the following decision of the Secretary of the Interior, made in 1866, when that officer had supervision of commissioners’ accounts. The Secretary held that “ the terms hearing and deciding embraced the commissioners’ acts and rulings in the case, as well as the trial and determination of the issue of fact in the technical sense of those words.” And he further relies upon the following statement in the opinion of this court in Harper’s Case (21 C. Cls. R., 58):
“ Without intending to lay down a rule which should govern all cases, the court is of opinion that acts merely clerical, or for which special fees are allowed, should not entitle the commissioner to the daily compensation ; but 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 he criminally held, whether a continuance should be granted when required by one of the parties, and in such ease the amount and sufficiency of bail, come within the terms ‘for hearing and deciding on criminal charges;’ and the daily compensation should be allowed.”

Plaintiff further urges that to comply with section 1014 of the Revised Statutes, as judicially interpreted (United States v. Rundlett, 2 Curtis, C. Cls. R., 41; Knox v. United States, 23 C. Cls. R., 367; affirmed, 128 U. S. R., 230), it was necessary for him to hear these witnesses at the time he did, and to decide upon the sufficiency of the complaint before issuing his warrant.

Section 847, Revised Statutes, provides a fee of $5 a day “ for hearing and deciding on criminal charges * * * for the time necessarily employed.” This statute evidently contemplates an act in its essence judicial, not clerical. At the examination of complaining witness prior to issuing warrant there was no reason why counsel should be present$ the defendant was not before the commissioner; there were no matters in controversy. That the intent of this provision of the statute was to provide compensation for a hearing and decision after warrant issued and returned, and with the defendant before the commissioner, is shown by the subsequent provision in the same section giving a fee “ for issuing any warrant or writ.” The service performed by plaintiff was this service; he issued warrants; and for performing that duty is entitled to a definitely specified fee, which must be held to include compensation for all labor necessarily incident to the duty of issuing a warrant or writ, such as hearing the statement of the complaining witness.

This item of charge is disallowed.

Judgment for plaintiff for $85.  