77 F. 153 (D.Minn. 1896), Donahower v. United States

Citation:77 F. 153
Case Date:November 21, 1896
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 153

77 F. 153 (D.Minn. 1896)




United States Circuit Court, D. Minnesota, Third Division.

November 21, 1896

Eugene G. Hay, for plaintiff.

E. C. Stringer, U.S. Dist. Atty.

LOCHREN, District Judge.

The petitioner was United States marshal of the district, appointed in May, A.D. 1890, and holding that office for the term of four years thereafter, and now seeks to recover numerous items of fees and expenses alleged to be due for official services rendered the United States, and expenditures officially incurred by him for the United States, during his incumbency of the said office, all of which items have been disallowed or suspended

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by the accounting officers of the treasury department. Pursuant to stipulation of counsel, the cause was referred to H. Harcourt Horn, Esq., to hear the testimony and report the facts to the court. The referee performed that duty, and his report was filed December 20, 1895. The case has been submitted to the court upon briefs by counsel. The referee has, in his report, classified the items of petitioner's claim into separate groups, designated by letters or numerals; and as this classification is convenient, and has been adopted by counsel in their briefs, I will, in general, refer to such groupings, instead of the specific items.

1. Counsel agree that the petitioner should be allowed certain items not included in the headings hereinafter particularly mentioned, aggregating the sum of four hundred and fifty dollars and twenty-five cents.


Heading E.

2. The items under this heading aggregate forty-four dollars; comprising the regular charge of fifty cents for serving eighty-eight subpoenas upon witnesses to testify in the district court on behalf of the United States. These subpoenas were all regularly issued by the clerk of the district court, upon the praecipe of the then district attorney, and placed in the hands of the marshal for service, without any connivance or procurement on the part of the marshal. It is evident that many of these subpoenas were unnecessary, and issued in disregard of the acts of congress which were enacted to prevent such abuses. One example shows the reckless extent to which this abuse was carried: Nine of these subpoenas were for service upon J. W. Vars, a deputy collector of internal revenue, all requiring his attendance at the same term of court, held in the same federal building in which his office was located. While, upon the showing made, it seems clear that the district attorney was at fault in directing all these subpoenas to issue, contrary to the provisions of the acts of congress, so that, if the claim were made by him for fees for filing the praecipes, it should be disallowed, I am not able to see that the marshal was at fault in serving these subpoenas. He was merely an executive officer, bound to serve all writs and process placed in his hands for service, and appearing to be issued out of the proper court, and regular in form and purport. It did not rest upon him to determine whether there was or was not occasion for issuing any subpoena or other process. He would have no right to assume to judge of such a matter. His plain and simple duty was to serve the process, and he is entitled to the fees-- forty-four dollars-- claimed under this heading.


Heading F.

3. The items under this heading aggregate one hundred and eighty-eight dollars and seventy cents. And each item is for service and mileage, as marshal, in arresting and transporting a prisoner from the place of his arrest to the office of the United States commissioner who issued the warrant, and before whom the warrant was, by its terms, made returnable, although in each case there was a

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United States commissioner having his office nearer the place of arrest than the office of the commissioner who issued the warrant. In respect to the first item under this heading, No. 165, the service was performed before the passage of the act of March 3, 1893, which was as follows:

'Provided, that it shall be the duty of the marshal, his deputy or other officer, who may arrest a person charged with any crime or offense, to take the defendant to the nearest circuit court commissioner, or the nearest judicial officer having jurisdiction under the existing laws for a hearing, commitment or taking bail for trial, and the officer or magistrate issuing the warrant, shall attach thereto a certified copy of the complaint, and upon the arrest of the accused, the return of the warrant with a copy of the complaint attached, shall confer jurisdiction upon such officer as fully as if the complaint had originally been made before him; and no mileage shall be allowed any officer violating the provisions hereof.'

All the items under this heading, except the first, were for such service and mileage after the passage of this act. As to that first item, No. 165, the act has no application, and it should be allowed. In respect to the other items, it...

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