
    LEWIS F. CHURCHILL v. THE UNITED STATES.
    [No. 15712.
    Decided December 2, 1889.]
    
      On the Proofs.
    
    A circuit court commissioner’s accounts are approved by the court, but the accounting officers reject items for warrants in revenue cases issued without the express approval of thb district attorney; also items for copies of process where by rule of court the originals are required; also items for several acknowledgments where several persons might join in one; also items for several warrants where the parties were charged with committing the same offense. Explanations are asked for by the accounting officers but none are furnished by the claimant.
    I. The court adheres to the ruling in Davies’s Case (23 C. Cls. R., 468) that an indorsement on a complaint in a revenue case saying “the commissioner mil issue the warrant if in his opinion there is reasonable ground to believe the accused guilty,” is a substantial compliance with the rule requiring the approval of the district attorney.
    II. Where a commissioner is required by rule of court to send up original process and he also sends up copies, he is entitled for the latter to the fees prescribed by Revised Statutes, § 1014.
    
      III. In eases where one acknowledgment is taken of a defendant- and his , sureties at. the samo timo, a commissioner is entitled to only one foe.
    IV. Where original warrants are issued for persons charged with committing the same offense, who apparently might, have heen joined in one warrant, it will he held, in the absence of explanation that the item for duplicate warrants is an overcharge,
    
    
      The Reporters’ statement of the case:
    The following are the facts of this ease as found by the court:
    I. The claimant, Lewis F. Churchill, was a commissioner of the Circuit Court of the United States for the western district of North Carolina from the 20th.day of October, 1885, to the 30th day of June, 1887.
    II. The claimant’s accounts for services as said commissioner, verified by his oath, were presented to said court iu the presence of the United States 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 for payment, and they refused payment for the following' services, to wit:
    
      Tiem 1. All charges for issuing warrants, subpoenas, and other services in the arrest and examination of parties for violations of the internal-revenue laws where the warrants were issued on the conditional approval of the district attorney, as follows:
    Report 98466. §31.5.1
    Report 98868 . 348.30
    Report 103591. 257.80
    Report 104112.’. 63.75
    701.40
    These charges were disallowed at the Treasury Department, because it was supposed the proceedings were not authorized by rule 3 of the District Court of North Carolina. This rule was adopted by the court at the request of the Commissioner of Internal Revenue and the Attorney-General, and is as follows :
    
      “Hereafter no warrant shall be issued by a United States commissioner for the arrest of a person charged with having violated any of the revenue laws of the United States upon 1 ne complaint of an unofficial person or a deputy marshal, unless the collector of customs, or of internal revenue, or a deputy collector, or a Treasury or revenue agent, shall have made and attached an affidavit to such complaint, setting forth that the affiant has carefully inquired into the alleged offense; that it is such an offense as should be prosecuted, and, in his opinion, there is probable cause for the arrest of the accused, and that he requests that warrant for the arrest of the accused be issued: Provided, That the district attorney is nevertheless authorized to institute prosecutions under the internal-revenue laws in such cases as he may approve in writing over his official signature, indorsed upon or accompanying the affidavit or complaint of any individual first duly sworn to before a United States commissioner, and charging any defendant with a violation of said revenue laws.”
    The warrants were issued after the district attorney had written and signed the folio wing indorsements on thecomplaints :
    “The commissioner will issue a warrant on the within affidavit, if he is satisfied upon examination, based on the oath of the witness, there is probable cause tor prosecuting the defendant.
    
      “ Or the commissioner will issue a warrant on the within affidavit if, in his opinion, there is reasonable ground to believe the accused guilty.”
    Soother objection was made by the counsel for the defendants to any part of these charges.
    
      Item 2. Making copies of process to be returned into the clerk’s office of the United States Circuit Court- in various criminal cases bound over to the court, disallowed, as follows :
    Report 98456...:. $0.60
    Report 98868. 29.10
    Report 103591. 11.00
    Report 104121. 7. 00
    47. 70
    These copies of process were made in cases where the commissioner was required by rule of court to send up the original papers. The originals were sent up under the rule, and copies also under section 1014 of the Revised Statutes. His fees for making the original papers were allowed, but the fees for making the copies were suspended and the commissioner requested to explain why he made and charged for copies in such cases. To this request the commissioner made no answer.
    
      
      Item 3. For taking acknowledgments or recognizances of parties and sureties to appear at court, at 25 cents each, disallowed, as follows. $9. 25
    The claimant has been allowed and paid one fee of 25 cents-for each recognizance or acknowledgment taken by him, regardless of the number of persons appearing and joining in the acknowledgment at one and the same time. The claimant has charged 25 cents additional for each person joined in one acknowledgment, and these cumulative fees make up the $9.25 disallowed.
    
      Item 4. All charges for issuing separate warrants of arrest for certain defendants charged with the same offenses, disallowed, as follows.. 24. 00-
    In these cases the defendants were charged with the same' offenses and apparently should have been joined in one process. The Comptroller informed the commissioner in writing that defendants charged with committing the same offenses at the same time and requiring the same witnesses should be joined in one proceeding, and that he had suspended action to await his explanation. To this communication the commissioner made no reply, nor has he furnished the court with any explanation or evidence on the subject.
    Upon the foregoing findings of facts the court decided as conclusion of law that the claimant was entitled to recover for the fees charged in Items 1 and 2, $749.10, and that the claims set out in Items 3 and 4 should be dismissed.
    
      Mr. O. G. Lancaster for the claimant.
    
      Mr. F. P 'Dewees (with whom was Mr. Assistant Attorney-General Ootton) for the defendants.
    
      
      N. B. — This caso was decided before tbe decision of the Supreme Court in Jones v. United States (post). See also the Dennison Case (post.) as to the effect of the approval of a commissioner’s account by a Circuit or District Court.
    
   Scoeield, J.,

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 ajn proved by the court, were presented to the accounting officers of tbe Treasury for payment. Part of the accounts were allowed and paid, but the four items set out in Finding II were either disallowed or suspended for explanation.

Item, 1, amounting to $701.40, is for issuing warrants, subpoenas, and for other services, in the arrest and examination of parties charged with violation of the internal-revenue laws.

The only objection to these charges, as stated by counsel for the Government, is that the proceedings were begun in violation of ltule 3 of the court. That rule is as follows:

“Hereafter no warrant shall be issued by a United States commissioner for the arrest of a person charged with having violated any of the revenue laws of the United States upon the complaint of an unofficial person or a deputy marshal, unless the collector of customs, or of internal revenue, or a deputy collector, or a Treasury or revenue agent, shall have made and attached an affidavit to such complaint, setting forth that the affiant has carefully inquired into the alleged offense; that it is such an offense as should be prosecuted, and, in his opinion, there is a probable cause for the arrest of the accused, and that he requests that warrant for the arrest of the accused be issued: Provided, That the district attorney is nevertheless authorized to institute prosecutions under the internal-revenue laws in such cases as he may approve in writing over his official signature, indorsed upon or accompanying the affidavit or complaint of any individual first duly sworn to before a United States commissioner, and charging any defendant with a violation of said revenue laws.”

Upon the back of the complaint the district attorney made the following indorsement:

“ The commissioner will issue a warrant on the within affidavit if, in his opinion, there is reasonable ground to believe the accused guilty.”

No other objection is made by the counsel for the defendants to any portion of these charges.

The same question arose in Davies’s Case (23 C. Cls. R., 408), in which the court said:

“It is urged by the claimant’s counsel that Pule 3 is not binding upon the commissioner because the court was without authority to control his discretion in the premises. It was adopted by the court at the request of the Attorney-General and the Commissioner of Internal Revenue, in order to avoid alleged abuses of process by commissioners for the purpose of accumulating fees, and was doubtless, if valid, a very wholesome restraint. We do not feel called upon in this case to pas.", upon its validity; because we bold that the indorsement on the bach of the complaints was a substantial compliance with the proviso of the rule.”

The court adheres to this ruling.

Item 2 consists of charges for making and sending up to court copies of process under section 1014 of the lievised 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.

In Ravesies’s Case (23 C. Cls. R., 299), where the same question was involved, 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 lie makes copies under the requirements of section 1014 he is allowed for that service. 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 that 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.”

The majority of the court is of the opinion that this item should be allowed.

The question involved in Item 3 is whether in cases where one acknowledgment is taken from a defendant and his surety in the same proceeding to appear at court at one and the same time, the commissioner is entitled to a single fee or as many fees as there are persons joining ip the single acknowledgment. The accounting officers held that the commissioner is entitled to only one fee for one acknowledgment, although several persons are joined in it.

Although the question is not free from doubt, the court is not disposed to disturb the practice of the Treasury Department.

A question somewhat analogous to this was decided in Davies’Case (23 C. Cls. R., 468), where the court says :

“ Separate recognizances for witnesses to appear at court in the same case are not required. All may be joined in one.”

The fees embraced in Item 4 are for warrants issued for the arrest of several parties who it is alleged were charged with committing the same offense and should have been joined in one warrant. To enable the Comptroller to intelligently pass upon the case, he required the claimant to explain why the parties were not joined in one suit; and pending the reply suspended the consideration of the case. The claimant made no reply to the Comptroller, nor has he furnished to the court any evidence from which the fact in dispute can be settled.

In Davies’ Case, supra, it was held that when a commissioner lias charged daily pay for an unusual number of days in hearing criminal cases, and after a written request by the First Comptroller for an explanation of it, fails to explain the charge either to him or the court, it may be presumed to be an overcharge.

The rule laid down in that case is equally applicable to this. It is fair to the claimant' and' respectful to the accounting officers.

The judgment of the court is that the claimant recover on Items 1 and 2 $749.10, and that the claims for Items 3 and 4 be dismissed.  