Hallett v. United States

63 F. 817, 1894 U.S. App. LEXIS 3001

• Court: U.S. Circuit Court for the District of Massachusetts
• Decided: October 8, 1894
• Docket: Nos. 3,442-3,444
• Status: Published

Opinion

OOLT, Circuit Judge

(after stating the facts). These three cases, by agreement of parties, were consolidated and heard together. They relate to claims of Henry L. Hallett, commissioner, against the United States, for certain charges in his accounts which were disallowed by the comptroller of the treasury. Item 1 is for taking recognizances of witnesses to appear before (he commissioner at adjourned hearings. The authority for making these charges rests upon sections 879 and 1011 of the Ke vised Statutes. The power given “to any judge or other officer” in section 87!) to take the recognizances of any witness produced against the prisoner “for his appearance to testify in the case” plainly refers to the taking of reeogniztmc.es of witnesses to appear before the proper court having cognizance of the offense, and does not ha,ve reference to the taking of recognizances of witnesses to appear before a commissioner at adjourned hearings before himself. The authority of the commissioner to make these charges must rest upon section 1014. This section declares that—■

“Dor any crime or offence against tlie United Buttes the offender may * * * by any commissioner of a circuit court to take bail, * * * of any state where he may be found, and agreeably to the usual mode of process against offenders in such staff', * * * be arrested and imprisoned, or bailed, as the case may bit, for trial before such court of the United States as by law has cognizance of the offence, (topics of the process shall be returned as speedily its may be into the clerk’s office of such court, together with tlie recognizances of cite witnesses for their appearance to testify in the case.”

It was the purpose of this statute to assimilate all proceedings for holding accused persons to answer before a United States court to the laws of the state where the proceedings shall take place.

In U. S. v. Rundlett, 2 Curt. 41, Fed. Cas. No. 16,208, Judge Curtis says:

“My opinion is that it was the intention of congress by these words, ‘agreeably to the usual mode of process against offenders in such state,’ to assimulate all the proceedings for holding accused persons to answer before a court of the United States, to the proceedings had for similar purposes by the laws of the state where the proceedings should take place; and, as a necessary consequence, that the commissioners have power to order a recognizance to be given to appear before them, in those states where, justices of the peace, or other examining magistrates, acting under the laws of the state, have such power.”

In U. S. v. Case, 8 Blatchf. 250, Fed. Cas. No. 14,742, Judge Woodruff says;

“Congress having seen fit to direct that a party accused may, ‘agreeably to the usual mode of process against offenders’ in the state ‘where he may he found,’ ‘he arrested and imprisoned, or bailed,’ the court cannot say that a recognizance not warranted by the laws of the state, nor by any other act of congress, is of any validity.”

In U. S. v. Ewing, 140 U. S. 142, 11 Sup. Ct. 743, Mr. Justice Brown, speaking for the court, says:

“As this section requires proceedings to he taken ‘agreeably to the usual mode of process against offenders in such state,’ it is proper to look, at the law of the state in which the services in such case are rendered to determine what is necessary- and proper to be done, and inferentialiy for what services the commissioner is entitled to payment. U. S. v. Rundlett, 2 Curt. 41, Fed. Cas. No. 16,208; U. S. v. Horton, 2 Dill. 94, Fed. Cas. No. 15,393.”

See, also, Hallett’s Case, 5 Lawr. Dec. 281.

It appears, therefore, that the warrant for making these charges, if any, must be found in the statutes of Massachusetts. These statutes provide: That a court or justice may adjourn an examination or trial from time to time, as occasion requires, not exceeding 10 days at one time, without the consent of the defendant, and that in the meantime; if the party is charged with an offense not bailable, he shall he committed; otherwise he may be recognized in a sum, and with sureties, to the satisfaction of the court-or justice, for his appearance for such further examination, and for want of such recognizance he shall be committed to prison. When the prisoner is admitted to bail or committed, the court or justice shall bind by recognizance the material witnesses against the prisoner to appear and testify at the next court having cognizance of the offense, and in which the prisoner shall he held to answer. For good cause the witness may be required to enter into a recognizance with sureties for his appearance at court. If a witness shall refuse to recognize with or without sureties, he may be committed to prison. Where a defendant is charged with an offense punishable with death or imprisonment for life, the court or justice may bind by recognizance the material witnesses against the prisoner to appear and testify at the time and place to which the trial or examination is adjourned. Pub. St. Mass. c. 212, §§ 26, 36-39; Acts Mass. 1885, c. 136, pp. 594,. 595. There is no express power in these statutes authorizing a committing magistrate; to take the recognizances of witnesses to appear before himself at adjourned, hearings, except when a defendant is charged with an offense' punishable with death or imprisonment for life*. ATor do I think (his power should be implied as Incidental to his power to adjourn hearings from time to time, for the following rea,sons: The Massachusetts courts have declared that no presumption lies in favor of the: jurisdiction of an inferior magistrate, as the jurisdiction conferred is not. general, but limited by particular statutes. Bridge v. Ford, 4 Mass. 641. As a ministerial officer, he can do no valid act. not expressly or by necessary implication authorized by law. Vose v. Deane, 7 Mass. 280. A justice of the peace lias no right to take a recognizance except under the statutes giving ¡ hat magistrate jurisdiction. Com. v. Otis, 16 Mass. 198. The statutes of Massachusetts specifically provide in what cases a committing magistrate may fake recognizances, and therefore by implical ion exclude his power to take them in other cases.

But it is urged that these accounts were approved by the court as required by law, and that this is prima facie evidence of their correctness, which, in ¡he absence of clear and unequivocal proof of mistake on ihe pari of the court, should be conclusive. U. S. v. Jones, 134 U. S. 483, 10 Sup. Ct. 615; U. S. v. Barber, 140 U. S. 177, 11 Sup. Ct. 751; U. S. v. Ewing, 140 U. S. 142, 11 Sup. Ct. 743. Giving due weight to this rule as applicable to matters within the discretion of ihe commissioner, or to questions of fact, or even to cases where the law may be doubtful, it certainly does not. apply to cases when; Hie commissioner clearly acted without authority of law. A’or does it seem to me that, the rule laid down in U. S. v. Hill, 25 Fed. 375, Id., 120 U. S. 169, U. Sup. Ct. 510, can be invoked in (his case, for the reason that the statute is not of doubtful construction, and for the further reason that the practice of allowing these fees has not been uniform with the treasury department. Hallett’s Oase, 5 Lawr. Dec. 281. The case of U. S. v. Rand, 3 C. C. A. 556, S3 Fed. 348, 351, is cited in favor of the petitioner. An examination of the record in that case shows that ihe commissioner withdrew any claim for this charge by amendment to his petition, and that this item was not included in the judgment entered in the circuit court. This fact was set out in Ms printed argument submitted to the circuit court, of appeals. That case, therefore, can hardly be considered as a binding authority in this case. For these reasons I think this item was properly disallowed.

Items 2 and 5 are governed by the same considerations which apply to item 1, and therefore were rightly disallowed.

Items 3 and 4 are for small amounts. The question raised is one of discretion, and hence these items should be allowed, on the principle that the accounts are prima facie corred, and therefore conclusive in the absence of clear proof of mistake on the part of the court which approved them. U. S. v. Jones, U. S. v. Barber, U. S. v. Ewing, before cited.

Item 6 is important, and raises ihe question whether a commissioner can charge for copies of process and return of proceedings sent <to the proper court, where the defendants were discharged, in 1862 this court held that a commissioner should return all such papers. U. S. v. Cook (unreported). On January 11, 1882, by an order entered on that day, at the request of the attorney general, the court directed the commissioner, after the final disposition of each case, to return copies of all papers, together with all recognizances taken by him in the case, with a proper transcript of tlm proceedings. The part of the order which speaks of compensation was only intended to give the commissioners a right to refuse to perform the duty if it should turn out that they were not to be paid for it. T think this item should be allowed. It was allowed in the case of Strong v. U. S., 34 Fed. 17, and it comes within the principles laid down by the supreme court in U. S. v. Barber, 140 U. S. 164, 11 Sup. Ct. 749; U. S. v. Van Duzee, 140 U. S. 169, 11 Sup. Ct. 758; and U. S. v. Jones, 147 U. S. 672, 674, 675, 13 Sup. Ct. 437. In the last-cited case, Mr. Justice Brown says:

“Supposing it [tlie account], however, to be a question of doubt, if the court assumed jurisdiction to make such order, and the clerk obeyed it by entering-it upon the journal, he is entitled to his fee therefor, irrespective of the necessity for such order being made. In fact, he would be guilty of contempt in refusing to make such entry. The government cannot, in this collateral proceeding, attack tlw power of the court to make this order.”

Item 7 relates to charges for entering returns of warrants and subpoenas, and should be allowed. In U. S. v. Ewing, a similar charge was held to be unobjectionable. Section 847 provides: “For issuing any warrant or writ, and for any other service, the same compensation as is allowed to clerks for like services.” Section 828 allows clerks “for entering any return” 15 cents. This charge comes under this paragraph in section 828, and not under the paragraph “for making dockets,” etc., for which the commissioners are not entitled to charge any fee under the act of August 4, 1886 (24 Stat. 256, 274, c. 903); U. S. v. Ewing, ubi supra. What the docket fee in section 828 was intended to cover is defined in U. S. v. Van Duzee, 140 U. S. 199, 11 Sup. Ct. 941, and it does not include the charge made “for entering any return.” This ruling also applies to item 8 for entering orders of continuance.

Items 9,10, and 11 were suspended, not disallowed. I think these charges were within the discretion of the commissioner, and should have been allowed. It is undoubtedly true that the comptroller may suspend an account of a commissioner or other officer for a reasonable time pending an examination. U. S. v. Fletcher, 147 U. S. 664, 13 Sup. Ct. 434; New Orleans v. Paine, 147 U. S. 261, 13 Sup. Ct. 303. But it can hardly be contended in this case that Mr. Hallett’s accounts are still pending in the treasury department. The accounts may be considered as long since rejected by the department, and the sole question presented to the court is the legal right of Mr. Hallett to make these charges.

With respect to items 12 to 25, inclusive, the government has no suggestions to offer, in view of the decision in U. S. v. Harmon, 147 U. S. 268, 13 Sup. Ct. 327, and they are allowed.

Item 26, which covers charges for copies of process in excess of the amount allowed by section 828, Bev. St., was properly rejected.

Item 27 is for charges for more than one acknowledgment to each recognizance, and was rightly disallowed. U. S. v. Ewing, 140 U. S. 142, 11 Sup. Ct. 743.

Item 28 is for charges for more than one final recognizance of all the witnesses in each case, and these charges were properly disallowed upon the present state of proof. U. S. v. King, 147 U. S. 676, 13 Sup. Ct. 439.

Ttems 29 and 31 relate to matters which may be fairly said to he within the discretion of the commissioner, and should therefore be allowed.

Item 30 comes under the same ruling as item 6, and should be allowed.

It results from the foregoing conclusions that judgment should be entered for the petitioner in the sum of $6,385, and it is so ordered.