
    D. D. DAVIES v. THE UNITED STATES.
    [No. 15698,
    decided November 19, 1888.]
    
      On the Proofs.
    
    
      A commissioner's account is appproved by the Circuit Court, but disallowed in part by the accounting officers. It appears that he charged for services which clerks may perform but which commissioners are not required to: for entries as to subpoenas where the warrants were returned not executed; for daily pay in criminal cases, as to which the accounting officers requested an explanation and none was given; for new subpoenas, where a pending case was adjourned from day to day; for additional warrants on such adjournments; for separate recognizances for witnesses, where all might be joined in one; for process returned, where defendants were not held; and for copies, when the original was required.
    I. A commissioner is entitled to only such fees as are prescribed by statute law, and only for service which he is required or authorized by some law to render.
    II. Although the Revised Statutes (§ 847) give to commissioners “ the same compensation as is allowed to clerics for like services,” they do not authorize them to perform any act not otherwise required or authorized by law,
    
      III. When a warrant and supoena are issued and tlie warrant is returned not executed (nothing being done with the subpoena), no entry about the subpocena is required, and no fee canbe charged therefor.
    IV. When a commissioner has charged daily pay for an unusual number of days in hearing criminal cases, and after a request by the First Comptroller for an explanation fails to explain the charge either to him or to the court, it may be presumed to be an overcharge.
    V.When a case pending before a commissioner is adjourned from day to day, a witness is bound by the original subpoena to remain in attendance, and the commissioner can not charge for additional subpoenas.
    VI.When an examination before a commissioner is adjourned from day to day, the marshal is authorized by the original warrant of arrest to retain the defendant in custody. For that purpose no additional warrant is required, and none can be charged for.
    VII.When by a rule of court a commissioner was forbidden to issue warrants unless the district attorney authorized tho prosecutions in writing upon the complaint, and his indorsement was “ the commissioner will issue a warrant on the within affidavit if in his opinion there is reasonable ground to believe the accused guilty,” the indorsement was a substantial compliance with the rule.
    VIII.Separate recognizances for witnesses to appear at court in the same case are not required. All may be joined in one.
    IX.A commissioner is not required by the Revised Statutes (§ 1014) . to return copies of process when defendants are not held to appear for trial, nor to send copies when-the original is required.
    
      The Reporters’ statement of the case:
    The following are the facts as found by the court:
    I. The claimant, Daniel D. Davies, was a commissioner of the circuit court of the United States for the western district of North Carolina from the 1st day of July, 1880, to the 31st day of December, 1886.
    II. His accounts for services as commissioner, verified by his oath, were presented to said court in 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. Part was paid, but payment of the items presented in Finding III was refused.
    III.
    (1) For twelve capias subpoenas, issued in eleven different cases (two being issued in one case), at 25 cents each. $3.00
    (2) For entering return to subpoenas in cases where the warrant was returned not executed.... 6.00
    
      (3) For entering return to subpoenas in cases where the warrant was returned not executed and no returns made on the subpoenas, fl. 95
    (4) Claimant charged for two days’ services, $5 each, in hearing and deciding- on one criminal case. He was allowed and paid at the Treasury for one day’s service only. No reason was given for occupying two days. The First Comptroller requested the claimant in writing to give an explanation, but none was given and none was given in court. 5.00
    (5) For drawing recognizances of witnesses on behalf of the United States to appear on a future day before the commissioner where the examination was adjourned from day to day.. 14.80
    (6) For drawing reports in duplicate of the attendance of witnesses on behalf of the United States with orders for the marshal to pay... 95.70
    These reports contain but two folios each, but the charge is for four folios each. Two folios each have been paid for at the Treasury. This item is for the additional two folios.
    (7) For issuing warrants to commit defendants to jail for further-examination in default of bail, entering return of marshal, and filing said warrants, at $1.25 each .. $111.25
    These were temporary warrants to commit the defendants pending a hearing on adjournments from day to day.
    (8) For drawing complaints, issuing warrants, subpeonas, and • other services in the arrest and examination of parties for violation of the internal-revenue laws where the warrants were issued on the approval of the district attorney. $2,068.10
    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 Eevenue 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 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 probable cause for the arrest of the accused, and that he requests tha,t 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 be 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, aud charging any defendant with a violation of said revenue laws.”
    The warrants were issued after the district attorney had written and signed the following indorsements on the complaints :
    “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 for 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.”
    What specific fees are embraced in the foregoing item (8) does not fully appear; but the counsel for the Government files with the court a written statement to the effect that there are no legal objections to any of them, except the general objection above set forth.
    (9) For drawing bonds of defendants where held for a continuance, or for court, and acknowledgment of sureties. $10.25
    In certain cases before the commissioner he has charged for taking two bonds of a defendant for appearance before himself. He has been paid for one bond in each case. The above item is for the additional bond. No reason for taking two bonds appears.
    (10) For issuing warrants of commitment to jail, entering, returning, and filing said writ, where defendants were held for the United States circuit court, $1.25 each. $3.75
    This item is composed of charges for warrants of final commitments in default of bail to appear at court, and for bail bonds to appear at the same term of court, both made on the same day. The claimant has been paid one fee at the Treasury, and this item is for the others.
    (11) For drawing recognizances of witnesses on behalf of the United States for their appearance in the United States circuit court- $23.70
    This claim was rejected by the First Comptroller, because he held that all the witnesses in one case should sign one bond, unless in particular cases it should be necessary to have separate bonds, and then such necessity should be shown. No such necessity appears, other than in the fact that the charge is made. The Comptroller allowed and the claimant has been paid for drawing one bond in each case, two folios, 30 cents.
    (12) For making copies of procesa to be returned into the clerk’s office of the United States Circuit Court in the various criminal cases heard and examined. $161. 40-
    These charges are for copies of process sent to court in cases where the defendants were discharged, or in cases where the original process, not copies, was required by law to be sent to court.
    Upon the foregoing findings of facts the court decided as conclusions of law:
    (1) A commissioner is entitled to only such fees as are prescribed by statute law, and only for service which he is required or authorized by some law to render.
    (2) Although section 847 of the Revised Statutes gives to commissioners u the same compensation as is allowed to clerks for like services,” it does not authorize him to perform any act not otherwise required or authorized by law.
    (3) When a warrant and subpoena are issued, and the warrant is returned not executed (nothing being done with the subpoena), no further entry about the subpoena is required, and no fee can be properly charged therefor.
    (4) When a commissioner has 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.
    (5) When a case pending before a commissioner is adjourned from day to day, a witness is bound by the original subpoena to remain in attendance.
    (0) When an examination before a commissioner is adjourned from day to day, the marshal is authorized, by the original warrant of arrest, to retain the defendant in custody. For that purpose no additional warrant is required.
    (7) When, by a rule of court, a commissioner was forbidden to issue warrants, unless founded upon the affidavit of certain officers, but by the same rule the district attorney was authorized to institute prosecutions in such cases as he may approve in writing upon the complaint, and his indorsement was, “ The commissioner will issue a warrant on the within affidavit if, in. bis opinion, there is reasonable ground to believe the accused guilty,” such an indorsement is a substantial compliance with the rule.
    (8) Separate recognizances for witnesses to appear at court-in the same case are not required. All maybe joined in one.
    (9) A commissioner is not required by section 1014, Eevised Statutes, to return copies of process to court when the defendants are not held to appear for trial, nor to send copies when the original is required.
    (10) Upon the whole case the claimant is entitled to recover the sum of $2,071.10.
    
      Mr. O. O. Lancaster, for the claimant.
    
      Mr. F. P. Dewees (with whom was Mr. Assistant Attorney-General Howard), for the defendants.
   Scofield, J.,

delivered the opinion of the court:

From July 1,1880, to December 31,1886, the claimant was a commissioner of the Circuit Court of the United States for the western district of North Carolina. His account for services during this time, having been properly made out and duly approved by the court, was presented to the accounting officers of the Treasury for payment. Part of the account was allowed and paid, but the items set out in Finding III, amounting in all to $2,504.90, were disallowed. This suit is brought for their recovery.

A commissioner is entitled to charge only such fees as are-prescribed in the statute for such services as he is required or authorized by law to render.

Section 847 of the Eevised Statutes prescribes commissioners’ fees as follows •

“For administering an oath, 10 cents.
“ For taking an acknowledgment, 25 cents.
“ For hearing and deciding on criminal charges, $5 a day for the time necessarily employed.
“ For attending to a reference in a litigated matter, in a civil cause at law, in equity, or. in admiralty, in pursuance of an order of the court, $5 a day.
“ For taking and certifying depositions to file, 20 cents for each folio.
“For each copy of the same furnished to a party on request, 10 cents for each folio.
“For issuing any warrant or writ, and for any other service, the same compensation as is allowed to clerks for like services.”

The fees for clerks are prescribed in section 828, but this reference to them does not enlarge the duties of the commissioner. If he chooses to render service which the law does not require of him he can not recover fees therefor, although a fee is prescribed for like service when rendered by a clerk.

Bearing these rules in mind we proceed to consider the several items of the claimant's account.

The first item is a charge for issuing twelve capias subpoenas, at 25 cents each, amounting to $3. The law authorizes this kind of service, and the fee-bill fixes the compensation. The payment is objected to, because the necessity of issuing the subpoenas does affirmatively appear. The account was sworn to by the claimant, submitted to the scrutiny of the district attorney and the judge of the court, and in the absence of evidence to the contrary it must be presumed that they were issued in good faith.

The second and third items, amounting to $7.95, are for entering returns of subpoenas in cases where the warrants were returned not executed, and it does not appear that anything was done with the subpoenas. We know of no law or rule which requires any such entry. Certainly it was of no use.

The fourth item is for a second day’s service in hearing and deciding on one criminal charge. The claimant has already been paid for one day, and it does not appear otherwise than by the account that more than one day was “ necessarily employed.” The presumption, nothing else appearing, would be in his favor, but when requested by the First Comptroller to explain why so much time was required, he made no answer whatever. His silence rebuts any favorable presumption that might otherwise arise.

The fifth item is for drawing recognizances of witnesses to appear before the commissioner in cases where the examination was adjourned from day to day. In such cases the witnesses are bound by the original subpoena to remain in attendance and no recognizances are required (Gilbert’s Case, ante).

The sixth item is a charge for drawing duplicate reports of tbe attendance of witnesses, with orders to the marshal to pay. He has already been paid at the rate of two folios for each report, which it appears is all they contained. He is therefore entitled to nothing more.

The seventh item is for warrants to commit defendants to jail, pending examinations, which were adjourned from day to day. In Gilbert’s Case (ante) this court held that such temporary warrants were not required unless in exceptional cases, because by the original warrant the defendants remained in the custody of the marshal. The necessity of such temporary warrants, in exceptional cases, should be shown.

The eighth item, amounting to $2,068.10, 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 in writing by counsel for the Government, is that the proceedings were begun in violation of Buie 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 at 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 iirst duly sworn to before a United States commissioner and charging any defendant with a violation of said revenue laws.”

Upon the back of the complaints 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.”

It is urged by the claimant’s counsel that Buie 3 is not binding upon the commissioner because the court was without authority to control bis discretion in the premises. It was adopted by the court at the request of the Attorney-G-eneral and the Commissioner of Internal Eevenue, 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 pass upon its validity; because we hold that the indorsement on the back of the complaints was a substantial compliance with the proviso of the rule.

The charges in the ninth item are for drawing separate recognizances for witnesses to appear at court where only one was required. All the witnesses, as far as it appears, might have signed one paper. The claimant has already been paid for one recognizance. The additional charges are for services which the law, under the evidence, did not require.

The tenth item consists of charges for making copies of process in cases where the defendants were discharged by the commissioner. Section 1014, of the Eevised Statutes, under which these charges were made, provides that—

“For any crime or offense against the United States the offender may, by any * * * commissioner of a circuit court * * * 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. Copies of the process shall be returned as speedily as may be into the clerk’s office of such court, together with the recognizance of the witnesses for their appearance to testify in the case.”

This section only requires copies of the process and recognizances of witnesses to be sent up when the offenders have been imprisoned or bailed for trial before the court. When no offenders have been imprisoned or bailed, and no witnesses recognized to appear, no copies of proceedings are required.

Under these rulings of the court the claimant is entitled to recover $2,071.10, and judgment will be entered accordingly.  