United States v. McMahon, 42.

• Citation: 65 F. 976
• Decision Date: 13 February 1895
• Docket Number: 42.
• Parties: UNITED STATES v. McMAHON.
• Court: U.S. Court of Appeals — Second Circuit

65 F. 976

UNITED STATES v. McMAHON.

No. 42.

United States Court of Appeals, Second Circuit.

February 13, 1895

Charles Duane Baker, Asst. U.S. Atty.

Richard R. McMahon, for appellee.

Before LACOMBE and SHIPMAN, Circuit Judges.

SHIPMAN Circuit Judge.

Martin T. McMahon was the United States marshal for the Southern district of New York from July 7, 1885, to January 12, 1890 and, at the close of each quarter during said term, rendered his official accounts to the district court of the United States for said district, which were approved. These accounts were presented to the treasury department for allowance and payment, but sundry items thereof were disallowed by the first comptroller, and still remain unpaid. To recover the amount alleged to be due, Gen. McMahon brought a petition against the United States, before the United States circuit court for said district, pursuant to the act of March 3 1887. The circuit court rendered judgment in favor of the petitioner for $4,843.60, the entire amount which he claimed. From this decision the United States appealed to this court. No objection was taken by the appellee in regard to the manner in which the cause came to this court. Sundry assignments of error were filed, but upon the argument of the cause four questions only were presented by the government and those only will be considered.

1. The first point relates to the propriety of allowing the marshal for what are called, in the finding of facts, 'charges of $2 for serving temporary warrants of commitment, and for committing prisoners (50 cents) disallowed (by the accounting officer) on the ground that the warrants were not necessary $611.50." The finding does not state by whom the warrants of commitment were issued,-- whether by the commissioner, or by the district court, or when they were issued. It is presumed, however, that they were the original warrants of commitment, by virtue of which the prisoners, when arrested, were first committed to jail, because section 1030 of the Revised Statutes provides that 'no writ is necessary to bring into court any prisoner or person in custody or for remanding him from the court into custody; but the same shall be done on the order of the court or district attorney for which no fees shall be charged by the clerk or marshal. ' These oral remanding orders of the district court are not considered to be warrants of commitment, and, if they were, no fees for service upon the prisoner, except a mileage fee for transportation, are allowed, under section 1030. That an original, temporary order of commitment to jail, or mittimus, is important, and in some districts indispensable, has been frequently stated by the district judges. Section 1030 'is applicable where the accused is already in custody by virtue of a warrant from the court. The first warrant of the commissioner is simply to arrest and bring before him, and when it is executed it has spent its force. A commitment to jail becomes necessary, if the prisoner is to be held. ' Marvin v. U.S., 44 F. 405; Ex parte Morrill, 35 F. 261; Heyward v. U.S., 37 F. 764; Kinney v. U.S., 54 F. 313. The amount of fees to which the marshal is entitled, under section 829 of the Revised Statutes, for the delivery of the prisoner to the custody of the jailer by virtue of the mittimus, depends upon the question whether a mittimus is one of the class of warrants for the service of which a fee of two dollars is authorized by the first paragraph of that section, which is as follows: 'The service of any warrant * * * or other writ, except execution, venire, or a summons or subpoena for a witness, two dollars, for each person on whom service is made. ' In U.S. v. Tanner, 147 U.S. 662, 13 Sup.Ct. 436, which involved a claim by a marshal for travel fees of six cents per mile in serving warrants of commitment to a penitentiary, the court held that the delivery of the warrant to the warden was not a service of process upon him, within the meaning of the bill, and further, that:

'If a warrant of commitment can be said to be served at all upon any person, it is upon the criminal himself, who is transported by authority of such process, rather than upon the jailer, with whom it is simply deposited; and the fees of the marshal therefor are manifestly covered by the allowance for the travel of himself, his prisoners and guards. Not only does the transportation of a prisoner imply a travel in company with him, but section 829 expressly allows a fee of fifty cents for 'every commitment of a prisoner,' which implies the deposit of a warrant of commitment with the jailer.'

The question before the supreme court was one of mileage to serve process, and not of fee for the service of process; but the conclusion of the court that a mittimus is not a warrant, in the sense in which the term is used in the paragraph relating to service, and that the fees of the marshal are covered by other allowances, is equally applicable to the question now under consideration. The mittimus is the authority by which the...