Clough v. United States

47 F. 791 | U.S. Circuit Court for the District of Western Tennessee | 1891

Hammond, J.

Upon the foregoing agreement, facts, and record, the only thing to be determined by the court is the question whether, under the law, the fees are proper. Section 7 of the act of March 3, 1887, first above cited, provides, in cases of this kind, “that it shall be the duty of the court to cause a written opinion to be filed in the cause, setting forth the specific findings by the court of the facts therein, and the conclusions of the court upon all questions of law involved in the case, and to render judgment thereon.” The fact of the rendition of the services being conceded by the agreement precludes an}*- further necessity' on the part of the court than to simply find the facts true as alleged in the petition, leaving only conclusions of law to be reached.

The first item, for “making dockets and indexes, taxing costs,” etc., amounting to $610, must be disallowed the plaintiff, under the rulings of the supreme court in U. S. v. Ewing, 140 U. S. 142, 11 Sup. Ct. Rep. 743, and U. S. v. McDermott, 140 U. S. 151, 11 Sup. Ct. Rep. 746.

The second item in plaintiff’s petition is for $92.10 fees for drawing complaints in criminal cases. These complaints are sworn to, and each is the basis upon which the warrant in the case issued. In the eight different accounts, in which these fees are here sued for, there was no uniformity in the late comptroller’s rulings, — in four of them petitioner was disallowed all over two folios for each complaint; in two, all over three folios; in another, all the fees; and in still another, none were disallowed. There is no claim here, and cannnot be, that undue prolixity has been employed, or that there has been any attempt to thus increase these fees. They must therefore be allowed the petitioner under the express authority of U. S. v. Ewing, supra, and U. S. v. McDermott, supra, as well as U. S. v. Barber, 140 U. S. 164, 11 Sup. Ct. Rep. 749, and U. S. v. Barber, 140 U. S. 177, 11 Sup. Ct. Rep. 751. The plaintiff has charged these fees at 15 cents per folio of 100 words, while, under the cases cited, the supreme court has decided that he is entitled to receive 20 cents per folio, or one-third more than $92.10, or in all the sum of $122.80, which is here allowed.

The fees in the third item of this petition, for drawing “jurats” or “certificates” to the oaths of affiants to such complaints, should also be allowed in the sum of $34.20. U. S. v. McDermott, supra; U. S. v. Barber. 140 U. S. 164, 11 Sup. Ct. Rep. 749.

The fourth item of plaintiff’s petition is for filing such complaints, $3.2,0; the sixth, for- drafting bail-bonds of defendants, $16.20; the eighth, for drawing the affidavits of sureties to such bonds, touching their solvency, and sufficiency as bondsmen, $7.95; and the eleventh, $43.20, for copies of process sent to the court in cases where defendants -were held to bail. The supreme court holds in U. S. v. Barber, Id., that commissioners are entitled to these fees, and it follows that petitioner is entitled to a judgment for them here as claimed.

In U. S. v. Ewing, 140 U. S. 142, 11 Sup. Ct. Rep. 743, the fees of commissioners for “entering returns” of process issued by them, as well as their fees for issuing “temporary mittimus writs,” were held to be proper charges against the government. Tiie petitioner is therefore entitled to recover the $14.25 claimed in the ninth item of his petition, and the $9 claimed in the tenth item.

The seventh item here is $121, charged at 25 cents each for the acknowledgments of the principal and sureties to bail-bonds taken by him. In U. S. v. Ewing, supra, and U. S. v. Barber, supra, the supreme court has decided that the commissioner is only entitled to a single fee of 25 ceñís for all the acknowledgments to a single bond. Under this ruling, an examination of the schedules to this petition shows, and the district attorney and petitioner agree, that the recovery should be for the sum of $13.50, there having been 54 such bonds taken, in which all fees for acknowledgments wore disallowed at the treasury department. The remainder of this item, being $107.50, must be disallowed to the plain-till'.

The next item in plaintiff’s petition is the fee of 20 cents for affixing his commissioner’s seal to warrants, writs of mittimus, etc., issued by him upon preliminary examinations, and amounting to $141.40. Section 828, Kcv. St., gives clerks, “for affixing the seal of the court to any instrument, when required, twenty cents;” and the petitioner here claims under section 847, Kcv. St., “the same compensation as is allowed to clerks for like services.” Section 911, Eev. St., contains the enactment of congress regulating the “sealing and testing of writs,” and provides that “all writs and processes issuing from the courts of the United States shall be under the seal of the court from which they issue, and shall bo signed by the clerk thereof;” hence, as to writs issued by clerks of the federal courts, the seal is “required.” That a “warrant or writ” is an “instrument,” within the intent and meaning of these two sections of the statutes, there can be no doubt; and section 6, in the first chapter of the Revised Statutes, containing definitions, provides how seals shall be affixed “to any commission, process, or other instrument provided for by the laws of congress.” So that, in case of clerks, the plain reading of the statute gives the 20 cents for affixing the court seal to any writ, the same being an “instrument.” The argument that section 828, Eev. St., giving a fee of one dollar “for issuing and entering every process,” etc., covers every charge in respect of and concerning the writ, is wholly untenable, because a subsequent part of the section in terms provides a fee for “entering” the “return” of it, and this service might just as well be said to be embraced in the one-doilar charge as the foe for affixing tire seal, also expressly given. In the recent case of McKinstry v. U. S., 40 Fed. Rep. 813, Pardee and Lamar, JJ., lay down the principle to be followed in the construction of these statutes giving fees, that where the service is required by law of an officer, who has performed it, and the statute allowing the officer’s compensation “admits of two interpretations, the words should be construed liberally in favor of the officer, and not strictly in favor of the United States.”

This leaves for consideration the question whether a seal is “required” to be affixed by a commissioner of the circuit courts to a warrant issued by him to procure the arrest for preliminary examination of the defendant named therein, and charged with the commission of a crime or violation of the penal statutes of the United States. The authority for the issuance of such warrants, and the holding of such preliminary examinations, is contained in section 1014 of the Revised Statutes, under the head of “Criminal Procedure,” which provides that “for any crime or offense against the United Stales the offender may, by any * * 5(1 commissioner of a circuit court to take bail, * * * and agreeably to the usual mode of process against offenders in the state, 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.” At common law, according to Blackstone, “the warrant ought to be under the hand and seal of the justice,” etc. 4 Bl. Comm. 290. And in 2 Bouv. Diet. tit. “Warrant,” it is said: “A warrant should regularly bear the hand and seal of the justice, and be dated.” In Tennessee, such seal is necessary, as has been expressly decided in Tackett v. State, 3 Yerg. 392, where defendant was indicted for and convicted of murder. The deceased was a constable, and had a magistrate’s warrant for the defendant’s arrest, and in attempting to execute it he was resisted and killed by the defendant. The court finds that “ the warrant was in the usual form, except that it issued under the hand of the magistrate alone, without affixing his seal thereto and, in reversing the sentence of death, Peck, J., for the court, says: “The.authorities amply sustain the position of the counsel for the prisoner that a warrant commanding an arrest on behalf of the state, not having the magistrate’s seal, is void;” citing 2 Inst. 52; 1 Salk. 174; 1 Hale, P. C. 577; 2 Hale, P. C. 110, 111; 2 Hawk. P. C. c. 3, § 21; Com. Dig. “Improvement,” H, 7; 4 Bl. Comm. 290, (quoted supra;) and State v. Curtis, 1 Hayw. (N. C.) 471. And this case has been recognized in later decisions. Bell v. Farnsworth, 11 Humph. 609; Galvin v. State, 6 Cold. 283, 291.

The form of the teste to warrants and other writs in use by the commissioners in this district is, and for many years has been, as follows: “Given under my hand and official seal this-day of-, 18 — , and of the independence of the United States the-year;” to which the commissioner adds his official signature, and affixes or impresses his seal of office; and such is the form used by the petitioner on the writs issued by him, the fees for which he is here claiming. This is also substantially the form laid down by all the books of procedure, every one of which, so far as I have observed, provides for the affixing of the commissioner’s seal to a writ issued by him. Roe’s Crim. Proc. pp. 118, 119; Bump, Fed. Proc. 912, 914; Field, Fed. Courts, 786, 796, 798.

The petitioner’s official seal having been duly affixed to the writs issued by him as charged for here' the same having been done in pursuance of a practice of long standing in this district, and in accordance with the requirements of the law, and the fees therefor being prescribed by statute, the plaintiff is entitled to judgment for them. Fish v. U. S., 36 Fed. Rep. 677, 681. It follows, therefore, that a decree or judgment should be entered in favor of the petitioner against the United States for the sum of §405.70, in accordance with the foregoing opinion, and for costs, and it is so ordered.