Saunders v. United States

Citation73 F. 782
Decision Date30 March 1896
Docket Number26.
PartiesSAUNDERS v. UNITED STATES.
CourtUnited States District Courts. 1st Circuit. United States District Court (Maine)

Geo. E Bird, for petitioner.

Albert W. Bradbury, U.S. Atty.

WEBB District Judge.

In this proceeding the petitioner seeks to recover the amount of certain fees charged by him for official services as marshal of this district, which were included in his regular accounts, and disallowed by the comptroller. The accounts were all in due order presented to and approved by the court. Proof of required notice and service of the petition has been made. The United States, by the district attorney, demurs to the petition, and the demurrer has been joined. It only falls on the court to pass upon the legality of the charges for services, the performance of which the demurrer admits. The total demanded in the petition is the sum of $1,653 distributed over more than four years.

The items are numerous, but may be conveniently classified under a few heads:

Class 1. Service of warrants and other writs in criminal cases. In this class are included:

(a) Service of warrants for the arrest of persons charged with crimes, 14 items, amounting to $28.

The petitioner abandons his claim for these, as it is found that the same service had been charged and paid for in other accounts.

(b) Service of 67 mandates to bring in poor convicts for examination upon their application for release from imprisonment, at $2 each,-- $134.

The objection is that this service should have been performed by the jailer. But the jailer is not an officer of the United States, and the commissioner has no power to call upon him to perform any service. The United States uses the jails of the state for the confinement of prisoners under sentence or awaiting trial. The Revised Statutes of the United States (section 5539) subject prisoners so confined to the same discipline and treatment as convicts sentenced under the laws of the state, and place them under the control of the officer having charge of the jail under the laws of the state. Rev. St. Secs. 1042, 5296, regulate the method of the discharge of poor convicts. Upon application to a commissioner, in writing, by the convict, and after notice to the district attorney of the United States, who may appear, offer evidence, and be heard, the commissioner shall proceed to hear and determine the matter. To discharge this duty, the commissioner properly issues his mandate that the prisoner, without whose presence he cannot perform the duty of hearing and determining the matter, be brought before him. These proceedings, in Harmon v. U.S., 43 F. 560, affirmed by the supreme court in 147 U.S. 268, 13 Sup.Ct. 327, are held to be proceedings in a criminal case; and the marshal is the proper officer to execute all precepts issued therein. The fees for services of this class should be allowed to the full amount of $134.

(c) Service of warrants for removal of prisoners confined in jails remote from the place of trial, to the jail in the city where the trial was to be had; seven prisoners, at $2,-- $14.

Rev. St. Sec. 1030, provides that no writ is necessary to bring into court any prisoner or person in custody, but the same shall be done on the order of the court or district attorney. This statute is broad enough in its terms to cover cases like these where the removal was for long distances, but within the same district, though it may be doubted if such cases were in contemplation when the statute was enacted. Probably the primary object was to cut off charges for warrants when the jail was near the courthouse. But, however that may have been, the statute must be construed, as it stands; and I must hold that these warrants for removal, as warrant, of court, were unauthorized, and must be dealt with simply as orders of the court, for which the charge of $14 cannot be allowed.

(d) Service of a warrant of pardon,-- $2.

Satisfactory evidence has been produced that this service was made by the express direction of the department of justice, instructing also that the marshal should report to the department. It was essential that the warrant of pardon, granted by the President, should be delivered, and should be accepted by the convict. U.S. v. Wilson, 7 Pet. 150. The charge is the same as that allowed by the fee bill for the service of other warrants, and the marshal should be paid therefor.

(e) Service of warrant of commitment of four prisoners,-- $8.

In U.S. v. Tanner, 147 U.S. 661, 13 Sup.Ct. 436, it was held that a warrant of commitment was not served on a prison keeper, within the meaning of that clause of Rev.St. Sec. 829, which allows the marshal 'for travel, in going only, to serve any process, warrant,' etc. That case does not decide the question here presented; at most, it raises a query. 'If a warrant of commitment can be said to be served at all upon any person, it is upon the criminal himself, rather than upon the jailer,' is the suggestion of the court.

Rev. St. Sec. 829 gives the marshal fees:

'For service of any warrant, attachment, summons, capias, or other writs except execution, venire, or a summons or subpoena for a witness, two dollars for each person on whom service is made.'

Is a 'mittimus' in legal terminology, strictly and properly a 'warrant'? If so, the rightfulness of the marshal's charge is clear, under the statute. The ordinary employment of the term 'mittimus' is merely a matter of brevity.

Hawk. P.C. bk. 2, c. 16, Sec. 3:

'And inasmuch as the statute of 31 Car. II., commonly called the 'Habeas Corpus Act,' seems to suppose that all persons who are committed to prison are there detained by virtue of some warrant in writing, which seems to be intended of a commitment by some magistrate; and the constant tenor of late books, practice, and opinions are agreeable thereto.'

In St. 31 Car. II. we find these expressions:

'Unless the commitment were for treason or felony, plainly and especially expressed in the warrant of commitment;' 'unless for treason or felony plainly expressed in the warrant of commitment;' 'upon view of the copy of a warrant of commitment or detainer.'

The mittimus must be in writing, under the hand and seal of the magistrate issuing it, showing his authority. It must be properly directed, and must set forth the crime alleged against the party with convenient certainty, and ought to have a lawful conclusion. Hawk. P.C. bk. 2, c. 16, Secs. 13-16, 18.

In Hale, P.C., the mittimus is constantly styled the 'warrant.'

Volume 1, p. 122, after specifying what a mittimus should regularly contain, adds:

'Yet, I am far from thinking the warrant void that hath not all these circumstances.'

Page 123: 'And therefore the justification in false imprisonment against the gaoler may be good by virtue of such a warrant;' 'and it seems to be (contrary to the opinion of my Lord Coke) that, if an escape be suffered willingly by the gaoler upon such a general warrant, it will be felony in him;' 'and therefore, if the conclusion of the mittimus be to detain him until further order of the justice, it is true it is an unapt conclusion) * * * but the commitment is notwithstanding good, if there by any tolerable certainty in the body of the warrant for what it is.'

Volume 2, p. 583: 'And this leads me to the mittimus or the warrant to the gaoler to receive him. ' 'But, if the conclusion be irregular, I think it makes not the warrant void.'

Page 584: 'If the matter of the mittimus be otherwise sufficient to charge him in custody, it is a lawful warrant.'

'Upon the whole, if the offense be not bailable, or the party cannot find bail, he is to be committed to the county gaol by the mittimus of the justice, or warrant under his hand and seal containing the cause of his commitment.' 4 Bl.Comm.303.

'Then such justice, shall, by his warrant, commit him to the common jail,' etc. 1 Archb.Cr.Prac.& Pl. 165. At page 167: 'The following is the form of the warrant of commitment. ' And the form given is in all essentials like those issued by the circuit court and commissioners.

U.S. v. Johns, 4 Dall. 413, Fed. Cas. No. 15,481: 'By the Court. Upon habeas corpus, we are only to inquire whether the warrant of commitment states a sufficient probable cause to believe that the person charged has committed the offense stated.'

'Though there should be no doubt as to the validity of the warrant of commitment;' 'notwithstanding the warrant of commitment be defective. ' Gross, J., in King v. Marks, 3 East, 164.

'Though the warrant of commitment be informal. ' LeBlanc, J., 3 East, 166.

These examples show plainly that, in legal sense, a mittimus is a warrant. If the word in the statute is to be taken in its ordinary and popular sense, no difference appears. In the International Dictionary 'mittimus' is defined: 'A precept or warrant granted by a justice for committing to prison a party charged with crime; a warrant of commitment to prison. ' Wester's Unabridged Dictionary, edited by Goodrich & Porter, defines it in the same terms. Worcester's definition is: 'A warrant by which a justice of the peace commits an offender to prison.'

It follows that the charge was justifiable, and should not have been rejected. Upon what theory the treasury officers acted it is not easy to understand. Presumably not on the authority of Tanner's Case, as, of the original charge for five services, four were disallowed, and one allowed, with travel one mile; nor with regard to the statute, for that provides 'two dollars for each person on whom service is made.'

Class 2. Fees of marshal for distributing venires, and paying constables, at 15 terms of court; amount disallowed, $256.

The propriety of this class of charges is sustained by Harmon's Case. But the statute provides that they shall not...

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8 cases
  • Commissioner of Correction v. Gordon
    • United States
    • Connecticut Supreme Court
    • 25 January 1994
    ...a judicial warrant. See 1 J. Archbold, Criminal Procedure, Pleading and Practice (8th Ed.1877) pp. 149-52; see also Saunders v. United States, 73 F. 782, 786 (C.C.D.Me.1896). Today, the mittimus has come to be regarded only as a clerical document that is certified by the clerk of the court.......
  • Holland v. Fayette County
    • United States
    • Kentucky Court of Appeals
    • 19 June 1931
    ... ...          The ... first Congress of the United States, by resolution of ... September 23, 1789, asked permission to use the prisons of ... the ... Such a jailer receiving such a prisoner is not an ... officer of the United States. Saunders v. U.S. (C ... C.) 73 F. 782 ...          The ... money received by such a jailer, ... ...
  • Holland, Jailer, v. Fayette County
    • United States
    • United States State Supreme Court — District of Kentucky
    • 19 June 1931
    ...States. Johnson v. Lewis, 31 Ky. (1 Dana) 182. Such a jailer receiving such a prisoner is not an officer of the United States. Saunders v. U.S. (C.C.) 73 F. 782. The money received by such a jailer, where the jailer is on a salary, and the effect of section 246 of the Kentucky Constitution ......
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    • Florida Supreme Court
    • 9 January 1933
    ...court. Scott v. Spiegel, 67 Conn. 349, text 359, 35 A. 262. It is styled a warrant, and must set forth the crime alleged. Saunders v. United States (C. C.) 73 F. 782, 785. The term during which the accused was to be imprisoned is no part of the commitment because that is fixed by statute. P......
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