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On page 482, after the last line, add,

JUSTICES BRADLEY, GRAY, and LAMAR dissented for the reasons given in their dissenting opinion in Chicago &c. Railway Co. v. Minnesota, ante, 461."


Statement of the Case.



No. 1554. Submitted March 3, 1890.– Decided March 24, 1890.

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The decision of a commissioner of a Circuit Court of the United States

upon a motion for bail and the sufficiency thereof, and his decision upon a motion for a continuance of the hearing of a criminal charge, are judicial acts in the “hearing and deciding on criminal charges” within the meaning of Rev. Stat. $ 847, providing for a per diem compensation

in such cases. The approval of a commissioner's account by a Circuit Court of the United

States is prima facie evidence of its correctness, and, in the absence of clear and unequivocal proof of mistake on the part of the court, should be conclusive.

This was an appeal from a judgment rendered by the Court of Claims against the United States in favor of Richard M. Jones, for services rendered by him as a commissioner of the Circuit Court of the United States for the Western District of North Carolina.

The material facts of the case, as found by the court upon the evidence, were, that the claimant had been a commissioner of the said court from 1883 to the bringing of the action; that from December 3, 1885, to June 30, 1886, as such commissioner, he issued warrants in six cases in which issue was joined and testimony taken; in three cases in which issue was joined and no testimony was taken; and in three cases in which issue was not joined, the defendants discharged, and no testimony taken; and that he duly made his docket entries in each and all of those cases by order and authority of the court, and in the manner required by its rules.

His accounts for fees and for keeping his dockets were verified by oath, and presented to the court in the presence of the district attorney, and approved by the court in due form. For those accounts, thus approved, he was allowed a fee of three dollars in each case where issue was joined and testimony taken, two dollars where issue was joined but no testimony taken, and one dollar where issue was not joined,

Argument for Appellants.

and the defendant discharged. His account “also showed charges on eleven different days from March 12, 1884, to September 15, 1887, in as many criminal cases, each of which charges was either “for hearing and deciding on criminal charges, in deciding on amount of bail and sufficiency thereof," or “for hearing and deciding on criminal charges, in hearing and deciding on motion for continuance." These charges were approved by the Circuit Court, but not paid.

The court found as a conclusion of law that the claimant was entitled to $55 for these last eleven cases, and entered a judgment in his favor for $76. From that judgment the United States brought this appeal.

The only assignment of error presented by the government in this appeal was, that the court erred in finding that claimant is entitled to $55 for hearing and deciding on amount of bail and sufficiency thereof in four cases, and for hearing and de ciding on motion for continuance in seven cases.

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Mr. Assistant Attorney General Cotton and Mr. F. P. Dewees for appellants.

The words “ hearing and deciding on criminal charges” are plain and unequivocal in meaning and without ambiguity. The words have application to the charges made and the hearing and decision thereɔn. There must be a “hearing" relative to the “charges” and a “deciding” of some point relative to the “charges.” The granting of a motion for a continuance is the deferring of “hearing and deciding on criminal charges.” A determination upon the sufficiency of bail is either precedent or subsequent to the “hearing and de ciding on criminal charges.”

The approval of a commissioner's account by a Circuit Court of the United States under the provisions of the act of February 22, 1875, 18 Stat. 333, c. 95, is not a judicial determination of the rights of the parties. It is prima facie evidence that the work was done. Turner v. United States, 19 C. Cl. 629; Wallace v. United States, 116 U. S. 398.

It is not disputed in the case at bar that continuances were


Counsel for Appellee.

granted and bail taken by commissioner. His power to render such service is admitted. It is recognized that a commissioner exercises functions of the highest importance to the administration of justice. His powers are fixed by law and enumerated by Mr. Justice Field in United States v. Schumann, 2 Abb. (U. S.) 523.

The payment of the commissioner is by prescribed fees and only such fees can be paid for services.

It is not contended that for “ hearing and deciding ” the commissioner must be employed the whole of one day, but if he hears and decides a number of cases on the same day, payment can only be allowed for one. It therefore follows that the payment is not only intended for the service, but that the “time actually employed” is an element to be considered.

The construction given to a statute by the executive or accounting officers has been held by this court to be entitled to respect. It appears that on this subject there was conflict of opinion. The views of the accounting officers of the treasury were overruled by Assistant Secretary Otto. For a number of years payments were made in accordance with his decision. Since 1883 the accounting officers have required proof of the character of the service before making payments. The construction given by executive officers has, it will be seen, not been uniform.

To evade the construction of the law as given by the accounting officers, the present suit was brought in the Court of Claims without any demand having been made on the treasury. The case was decided by the court below in favor of claimant as coming within the decision in Harper's Case, 21 C. Cl. 56. That case has not been reviewed by this court. Attorney General Black, 9 Opinions Attys. Gen. 170, 171, says: “It is plain to me that examination of the person charged means investigation of the case.

It is subraitted that the words “ hearing and deciding on criminal charges” do not include taking "bail” and “continuing" cases.

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Mr. George A. King for appellee.

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