
    JAMES J. McCAFFERTY v. THE UNITED STATES.
    [No. 16342.
    Decided December 1, 1890.]
    
      On’the Proofs,
    
    A Circuit Court commissioner’s account is duly approved according to the requirements of the act 22d February, 1875; but various items are rejected by the accounting officers.
    I.A commissioner is not entitled to two per diem fees for hearing and deciding ‘different cases on the same day.
    II.Nor to a per diem fee for an examination of a complaint, antecedent to issuing a warrant rmder. Rev. Stat., § 847.
    III. A commissioner is entitled to a per diem fee where the proceeding
    consists of an arraignment and plea, an examination of witnesses, granting'a continuance, fixing'the amount of bail, and committing the defendant in default of bail.
    IV. A commissioner is entitled to fees for drawing papers in excess of the
    number of folios deemed necessary by the accounting officers, if his account was approved by the Circuit Court.
    Y. A commissioner is entitled to fees in each of two separate cases against the same defendant if the offences were distinct.
    VI. A commissioner is entitled to fees for separate acknowledgments of a defendant and his sureties.
    
      Reporters’ statement of tbe case.
    YII. A commissioner is entitled to fees for warrants of temporary commitment in default of bail where a jailer refusers to receive a prisoner without a warrant.
    VIII. Divisions of days are allowed to make priorities in private transactions, but not in public acts, such as legislative acts or judicial proceedings.
    
      The Reporters' statement of tbe ease:
    Tbe following are tbe facts of tbe ease as found by the court:
    1. Tbe claimant, James J. McCafferty, was a commissioner of the Circuit Court of tbe United States for the district of Minnesota from January 1, 3887, to March 31,1888, duly qualified and acting.
    II. His accounts for services during said period, duly verified, were presented to tbe U. S. Court in tbe presence of tbe district attorney for approval, and said court approved tbe same as being just and according to law. They were then presented to tbe accounting officers of tbe Treasury Department for payment. Part was paid, but payment for items in finding in was refused.
    III. 1. Per diem charges in each criminal case where more than one case was beard and decided on tbe same day, at $5 each, $195. This charge embraces 39 days; tbe claimant was allowed for the same day in other case. Tbe different bearings were in St. Paul, some being at tbe commissioner’s office, others at district attorney’s office.
    2. One per diem on each day for bearing and deciding on criminal charges where the proceeding consisted of an arraignment and plea of tbe person charged, an examination of witnesses, tbe granting of a continuance on motion of one of tbe parties, fixing tbe amount of bail, and if not tendered committing tbe defendant to jail, 13 days, at $5 per day, $65.
    3. Charges before issuing warrants of arrest, where tbe service consisted of an examination of affidavits and sworn complaints and deciding thereon, 118 days, at $5 per day, $590.
    4. Drawing recognizance of defendant for court in excess of four folios and not exceeding five folios, $16.65. Two folios have been paid at tbe Treasury, and this item is for tbe additional one folio.
    5. Charges in Case v. John Doe (No. 2) disallowed, because not joined with Case v. John Doe (No. 1), $3.15. These were two separate cases for selling whisky to Indians.
    
      6. For taking separate acknowledgments to each, recognizance of defendant and sureties, at 25 cents each, $10.
    7. Charges for more than four folios for making transcript of proceedings in various cases, and not exceeding five folios, at 15 cents per folio, $9.05.
    8. Charges for more than two folios for drawing complaint on which to base a warrant of arrest, at 15 cents per folio, $31.05.
    9. Issuing warrants of temporary commitment to jail in default of bail, entering return and filing same, at $1.25 each, $31.25.
    Upon the arrest of the defendant the warrant is returned into the court, and the sheriff refuses to receive a prisoner until a warrant of commitment is issued.
    10. Two cases v. Baker, one for selling liquor to Indians, the other for the violation of the internal revenue laws. $6.90 disallowed on the. ground of being duplicated, but it is shown
    that they were two distinct and separate offenses against the same party.
    Upon the foregoing findings of fact the court decides as a conclusion of law that the claimant is entitled to recover for fees charged in items 2, 4, 5, 6, 7, 8, 9, and 10, amounting to $173.05. Items 1 and 3 dismissed.
    
      Mr. Ojiarles G. Lancaster for the claimant.
    
      Mr. F. P. Dewees (with whom was Mr. Assistant Attorney-General Cotton) for the defendants.
   Weldon, J.,

delivered the opinion of the court:

This is a proceeding to recover certain fees as a commissioner of the Circuit Court of the United States for the district of Minnesota from January 1st, 1887, to March 31st, 1888, which were disallowed by the accounting officers of the Treasury Department. The accounts before being presented to the Department were submitted to the Circuit Court of the United States for said district, and were approved, according to the requirements of the Act February 22, 1875 (Í8 Stat. L., 333).

In the accounts for fees presented to the Department, the sum of $958.05 was disallowed as being unlawful, and for those rejected fees this suit was brought. The disallowed fees consist of 10 items, as shown by the findings. For those items thus disallowed, we give judgment for eight and dismiss as to two. The more important charges have been dismissed* The first charge rejected by the accounting officer is “ Per diem in such criminal cases, where more than one case was. heard, and decided on the same day, at $5 each, $195. The claimant was allowed for the same days in other cases.” The item presents the question whether a commissioner is entitled to recover for more than one per diem, for the same day, when he tries more than one case; the cases being heard at different places, but in the same city, near each other. The statute provides “ For hearing and deciding in criminal charges five dollars a day for the time necessarily employed ” (Rev. Stat., 847). It has been held by the Supreme and this Court, in the case of Jones v. The United States (25 C. Cls. R. 517, and 134 U. S. R., 483), that for the performance of judicial duty, as contradistinguished from clerical, the commissioner is entitled to a per diem compensation. For the performance of judicial duty he is to be paid per diem, and for the performance of all other duties he is to receive such specific compensation as may be prescribed by law. Judicial service is measured and paid for as time, while other services are paid for as specific acts. A day in law is ordinarily an indivisable unit and can not be apportioned.

“Although divisions of days are allowed to make priorities in questions concerning private acts and transactions, they are never allowed to make priorities in questions concerning public acts, such as legislative acts or public laws, or such judicial proceedings as are matters of record.” Welman’s Case (20 Vermont, 653). “ The law knows no division of a day.” Portland Bank v. Maine Bank, 2 Mass., 205.

For the days disallowed by the department, the claimant has been paid for services in other cases, and having been paid for one day, he is not entitled to recover for the same day in this proceeding.

The third item disallowed by the accounting officers embraces charges for services “before issuing warrants of arrest, where the service consisted of an examination of different and sworn complaints and deciding thereon (118) at $5 per day.”

By the law, subject to certain regulations, it is the duty of the commissioner to issue a warrant when a sufficient affidavit or complaint is made, and before he performs that duty he must necessarily pass upon the sufficiency of the allegations on which the party is to be arrested; but the performance of that duty can not by any fair reasoning be construed to be “ hearing and deciding on criminal charges ” within the meaning of the statute. Hearing a criminal charge implies a judicial hearing, and deciding a criminal charge implies a judicial determination after a hearing. After the defendant is arreste d and brought before the commissioner, if a motion is made to dismiss the prosecution because of the insufficiency of the complaint, hearing and deciding that motion would in its nature be judicial; but an examination of the complaint antecedent to the issuing of the warrant is not hearing and deciding a criminal charge, within the meaning of the statute. If the construction contended for should prevail, in every case where a warrant was issued, the officer would be entitled to a per diem compensation regardless of the question whether any arrest was made or not. The commissioner is allowed a fee for issuing the warrant, and in order to do that, he must necessarily examine the complaint and determine from that examination whether it is sufficient in law to justify the issuance of process. He is also allowed compensation for preparing the complaint, and is presumedin those cases to determine the legal sufficiency of the statement of the prosecutor before he reduces it to writing. He can not intelligently reduce the charge to writing without being fully possessed of the facts, and if after hearing the facts he proceeds to reduce them to writing by that act, he determines their legal sufficiency, and for that he is paid by the folio as for ministerial or clerical duty.

It is the judgment of the court that the claimant recover the sum of $173.05 for the charges allowed as shown by the findings, and the other charges are hereby dismissed.  