Puleston v. United States

Citation85 F. 570
PartiesPULESTON v. UNITED STATES.
Decision Date31 January 1898
CourtUnited States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Florida

Buckner Chipley, for petitioner.

J Emmet Wolfe, Dist. Atty., for the United States.

SWAYNE District Judge.

In this proceeding the petitioner seeks to recover the amount of certain fees charged by him for official services as marshal for the Northern district of Florida, which were included in his quarterly accounts to the government, and approved by this court, and thereafter disallowed and rejected by the accounting officers of the treasury department. The record discloses complete jurisdiction in this court, as conferred by the act of congress of March 3, 1887, all necessary prerequisites having been complied with. To certain of the items enumerated in the petition the district attorney has filed a demurrer, contending that it is apparent from an examination of said items that the same furnish no basis for a legal charge against the United States for any services or disbursements therein claimed. These items have been grouped and classified in the petition as follows:

Schedule A. Proper mileage actually traveled in the service of writs in United States cases. Certain items only under this schedule have been reached by the demurrer, the first (item 9) being a claim for mileage in this district; and the record does not disclose, as contended by the district attorney that the prisoner was not carried before the nearest commissioner. This item cannot thus be reached by demurrer, and the same may be said of items 11 13, 15, 16, 17, 18; and these questions here involved will be passed until the record, after plea and taking of testimony, discloses the exact nature of the claim. Apparently, they are correct.

Schedule B. Actual expense in endeavoring to arrest United States prisoners: Expense of horse hire where it was necessary to procure same in making arrest, the marshal claiming the expense therefor is in going, the return being merely incidental, and the expense being the same whether the return is made in the conveyance or not. It is maintained on the part of the petitioner that under clause 18, Sec. 829, Rev. St., the marshal is entitled to actual expenses, not to exceed two dollars a day, in addition to his compensation for service and travel, when endeavoring to arrest a man charged with an offense against the United States. In all of these items the deputy had received the warrant, and thereupon he hired a horse for the ordinary fee of two dollars, and went in search of the prisoner. The accounting officers maintain that one-half of the expense of hiring the horse should be merged in the fee for transportation returning; but it must be borne in mind that he is entitled to two dollars, if expended, in addition to travel and service; and, by clause 20, he is entitled to a fee of ten cents per mile for the prisoner. This latter is a fee, and not an expense. The hiring of a team is not a severable contract. It is a plain, simple contract, and covers the use of a horse for a certain time. It is immaterial whether the deputy returns with the horse, or sends it back as soon as he arrives at the place of arrest. The cost is for the time used, and the horse must be returned. And, in support of the demurrer, it is contended that these disallowances are based upon the theory, which it is contended is correct, that, the moment the arrest is made, the expense of endeavoring ceases. The subsequent expenses are covered by the mileage allowed, of ten cents per mile each for the prisoner, deputy, and guard. If the horse is hired, say, to go 20 miles, and return, for a given sum, half of that sum is for the return trip, and is covered by the allowance for mileage.

The question may be briefly stated thus: Is the expense of two dollars an amount which the deputy is compelled to pay for horse and carriage in order to reach the place of arrest? If this is answerable in the affirmative, it disposes of the question in favor of the petitioner. The items demurred to are all stated in the petition thus:

'U.S. vs. . . . . Horse hire, endeavoring to arrest, disallowed; claimed to have been covered by the transportation returning. That was not the case. In hiring a team to go to a certain place, the entire cost of the team is for going only, the return is simply incidental to the going. If the person hiring the team does not return, the cost is the same, as the team must necessarily return; and, if the person hiring desires to return with the team, it is his privilege to do so, without further cost.'

And, although it involves a confused statement of fact with what is contended to be the law applicable thereto, yet I can but conclude that a contract of this nature cannot be thus divided and separated into two trips, with two separate sums, one payable by the United States, and one personally by the marshal. It clearly lies within the field of common sense to say that the hire of a horse for a trip of this kind is a simple contract, calling for the payment of the stipulated hire; and under the terms of these contracts, as disclosed in the pleadings, it seems to be immaterial whether one rides 10 or 20 miles, whether one goes and returns by the same conveyance, or sends it back after arriving at the destination. If the party owning the conveyance could demand in advance the two dollars for its use for a day, clearly it is but an expense in endeavoring; and I cannot say that the record discloses circumstances relative to these items that lead to any other conclusion. The charge was no more than the statute permitted to be allowed. Rev. St. 829, cl. 18. There is no contention that the services were not actually rendered, and disbursements charged were not actually made, in lawful money; and under the ruling of the supreme court in case of U.S. v. Harmon, 147 U.S. 279, 13 Sup.Ct. 327 (item 5), I think these items should be sustained as to the demurrer.

Schedule C, items 1 to 14, inclusive. Fees for committing prisoners on writs and orders of court in writing under seal, issued by proper authority: (1) Commitments on order or warrant of removal from a jail to the place of trial, where prisoner had been previously committed by commissioner in a county jail other than the place of trial; (2) commitments on writ of temporary commitment; (3) commitments on writs of attachment.

Item 1 is a claim for commitment in Alabama, on a warrant of removal. It is claimed in brief by district attorney that a deputy marshal or marshal can do no legal official act outside of his district, and hence could earn no fee by such act. By section 1014, Rev. St., it is provided, among other things, that:

'Where any offender or witness is committed in any district other than that where the offence is to be tried, it shall be the duty * * * of the marshal to execute a warrant for his removal to the district where the trial is to be had.'

And by section 1029, Rev. St.':

'Only one writ or warrant is necessary to remove a prisoner from one district to another. One copy thereof may be delivered to the sheriff or jailer from whose custody the prisoner is taken, and another to the sheriff or jailer to whose custody he is committed, and the original writ, with the marshal's return thereon, shall be returned to the clerk of the district to which he is removed.'

These sections of the Revised Statutes expressly confer, on the marshal of the district where the arrest is effected, authority, and make it his duty to execute a warrant of removal when signed by the judge. He must either turn over the prisoner to the marshal of the other district, or commit the prisoner to jail there. Either would be a commitment into custody. The account states that the commitment was to the jail of Montgomery, Ala.; and it may be further stated that the accounting officers have allowed the mileage outside of the district, which would lead me to conclude that the government does not contend that the deputy had no authority, but merely that this is not such a commitment as is contemplated by law; but under section 829, cl. 19, I conclude it is a proper charge.

Items 2 to 5, inclusive. It does not appear clear to me upon the face of the record, what is the exact nature of these charges. Apparently they are correct, but in the briefs of counsel the matter is argued at length, based upon matter outside of the record. I do not desire to pass upon this question while the record proper is uncertain, and the question not properly presented.

In the remaining items, 6 to 14, inclusive, the same question is involved as in Schedule H; and, under that head, I have taken up the discussion of the question here involved, and, under the ruling, these items are correct.

Schedule D. Actual service of subpoena on witnesses on the part of the United States, same having been issued by proper authority: (1) On witnesses at the time in jail, under charge for offenses against the United States; (2) upon witnesses at the time under bond to appear and answer another and different charge, but under no obligation to attend at time subpoenaed for; (3) upon witnesses under no process.

These charges are for service of subpoena of witnesses for attendance in criminal causes heard before a commissioner. Items 5, 6, and 7 seem correct on their face, as the record discloses that these witnesses were neither under arrest nor in attendance in other causes. The demurrer cannot reach them. As to items 2, 3, 4, and 12, it is contended that first, where a person has been committed by a commissioner upon a charge to answer before the next term of the circuit court, that the prisoner is still subject to the verbal order of the commissioner for his production as a witness before him in another cause, and that under section...

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  • Comptroller General Warren to F. A. Hickernell, B-28057
    • United States
    • Comptroller General of the United States
    • October 20, 1942
    ... 22 Comp.Gen. 373 COMPTROLLER GENERAL WARREN TO F. A. HICKERNELL, ESQ., UNITED STATES COMMISSIONER No. B-28057 Comptroller General of the United States October 20, 1942 . . ... removed. Italics supplied.). . . As. explained in puleston v. United States (c.1ct., fla., 1898),. 85 F. 570, 573, affirmed (c.C.A. 5, 1901), 106 F. 294:. ......
  • State ex rel. Brown v. Christmas
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    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Florida
    • May 16, 1898
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