United States v. Dill

• Decision Date: 18 March 1898
• Docket Number: 2.
• Citation: 86 F. 79
• Parties: UNITED STATES v. DILL.
• Court: U.S. Court of Appeals — Third Circuit

86 F. 79

UNITED STATES v. DILL.

No. 2.

United States Court of Appeals, Third Circuit.

March 18, 1898

This was a petition by Catharine S. Dill, sole executrix of the last will and testament of Andrew H. Dill, deceased, praying judgment against the United States for the sum of $758.16 claimed as due to her for services rendered by Andrew H. Dill as a marshal of the United States for the Eastern District of Pennsylvania. In the circuit court judgment was given for plaintiff in the sum of $754.86, with costs. 78 F. 618. The United States thereupon sued out this writ of error. In the court below counsel for the respective parties submitted the following statement:

It is agreed that the charges for mileage, expenses, and rendition of services set forth in the petition filed are correct; that the expenses were actually paid, and the said services were actually rendered. It is further agreed that all the items in the petition filed, both for expenses incurred and fees earned, were embodied in the various accounts of the said Andrew H. Dill, deceased, during the years mentioned in the said petition, which said accounts were examined and passed upon by the then United States district attorney, and formally approved by this court. The various items of claim set forth in the said petition are grouped in the schedule hereto attached:

(1) Amount earned, and not received, for attending by deputy at examinations before a commissioner during years 1887 and 1888, $328. A United States marshal is entitled to charge for the attendance of himself and his deputies before United States commissioners on the same days on which circuit or district courts are in session, and fees for attendance on these courts are charged and paid. Saunders v. U.S., 73 F. 792; U.S. v. Kerns. Counsel for the United States contends that said deputies were not entitled to said pay for the reason that, on the days for which they charge for attendance before United States commissioners they were actually paid attendance upon the district and circuit courts as bailiffs; that duplicate per diems are not authorized and, further, that the treasury department has disallowed the charges embraced in this particular item of claim. It is however, admitted that similar charges for attendance of deputy marshals under the same circumstances were subsequently allowed to Marshal Dill during the years 1889 and 1890, and have been allowed by the treasury department up to the present time.

(2) Amount earned, and not received, for travel in going only to serve warrants of removal and warrants of commitment during the years 1887, 1888, 1889, and 1890, $141.18. This charge is authorized by paragraph 25, Sec. 829, Rev. St., viz.: 'For travel in going to serve any process warrant, attachment or other writs six cents a mile to be computed,' etc. If the disallowance is because a charge has been made for transportation of the prisoner, this is not a valid reason. Paragraph 20 of section 829 provides, 'for transporting criminals ten cents a mile for himself and for each prisoner and necessary guard. ' In the case of Tanner v. U.S. (decided in the court of claims in 1889) 25 Ct.Cl. 68 (a case in point), Judge Davis said: 'It appears that for fifteen years the accounting officers consistently construed the statute as authorizing the payment to the marshal of the two fees,-- one for travel in the service of a warrant of commitment; the other for transporting the criminal named in the warrant. The construction given to a statute by those charged with the duty of executing it is always entitled to the most respectful consideration, and ought not to be overruled without cogent reasons. ' The court found as conclusions of law that the claimant recover the sum of $128.16 fees for mileage. In the case of U.S. v. Kerns, U.S.Dist.Ct., Aug.Sess. 1888, No. 4, this court allowed services for return mileage where marshal has secured or delivered a prisoner pursuant to warrant of arrest or removal. Harmon v. U.S., 43 F. 560. Counsel for the United States contends that this item of claim is unauthorized, as the statutes nowhere allow a marshal six cents per mile in addition to the ten cents per mile for transportation on the same warrant at the same time. The treasury department disallowed this item for this reason.

(3) Serving warrants of commitment in 1887, 1888, and 1889, $60. Saunders v. U.S., 73 F. 782, 792. A mittimus for the commitment of a prisoner is a warrant, for the service of which on such prisoner the marshal is entitled, under Rev.St. Sec. 829, to a fee of $2. In these cases writ was served upon the prisoner, not upon the jailer. In U.S. v. Kerns, supra, the court allowed defendants charges for fees for temporary commitments. Also, see Turner v. U.S., 19 Ct.Cl. 629; Heyward v. U.S., 37 F. 764; Hoyne v. U.S., 38 F. 542. Counsel for the United States contends that the claim in this item was disallowed by the treasury department for the reason that the writ was served upon the jailer, and not upon the defendants. This item is composed of charges for service of warrants of commitment upon defendants where there was more than one defendant. The fee allowed by law for executing a warrant of commitment where two or more persons are committed under the same warrant is $2.

(4) Travel. Deputy marshal in 1887 to serve at Richmond, Franklin county, 190 miles, at 6 cents, making a total of $11.40. Of this amount, $5.04 allowed, being for 84 miles' travel from Harrisburg, where writ was issued,-- $6.36. Having no deputy at Harrisburg at the time the warrant was issued, the commissioner forwarded warrant to Marshal Dill, at Philadelphia. The distance traveled was necessary to serve writ. The route taken was the most direct. The evident intention of congress was to give the officer 6 cents a mile for every mile actually and necessarily traveled, by the most direct, practical route, in going to serve the writ. In U.S. v. Kerns, supra, this court entertained a question regarding the services of venires kindred to the above, in principle, and awarded full claim of mileage. Counsel for the United States states that the original claim was for $11.40. Of this amount, the treasury department allowed the sum of $5.04, being the mileage from Harrisburg, where the warrant was issued, to Richmond, where it was served, and disallowed the mileage from Philadelphia to Harrisburg, for the reason that section 829, Rev.St., only allows a marshal mileage from the place where the warrant is served to the place where it was returned.

(5) Total amount of mileage earned, and not received, for travel in going only to serve jury summons during 1887-1888, $24.82. Section 829, par. 25, before quoted, provides: 'For travel in going only to serve any process, warrant attachment or other writ, * * * six cents a mile. * * * But where more than two writs of any kind required to be served in behalf of the same party on the same person might be served at the same time, the marshall shall be entitled to compensation on only two of such writs. ' The jury summonses in question were all served upon different persons, and there is nothing in this paragraph restraining or controlling the journeys of the marshal or deputies in performing his duty. The mileage was clearly and legally earned. Saunders v. U.S., 73 F. 783, and Harmon v. U.S. 43 F. 560, decide that a marshal may charge for travel upon two or more writs, against different persons, served at the same time and place. This court allowed this claim in U.S. v. Kerns, supra. Counsel for the United States contends that this is double mileage; that the marshal is only allowed for travel in service of one writ, although there may be a number in his hands, and served by him at the same time and place.

(6) Andrew H. Dill claims, for attendance as marshal upon the United States circuit court for the Eastern district of Pennsylvania on the 16th day of October, 1887, earned, but not received, $5. This was Sunday and is a claim for actual attendance on court in charge of a jury that was deliberating on a verdict. Counsel for the United States contends that October 16, 1887, was Sunday; that from the records it appears that the case of Green v. Pennsylvania R. Co., No. 2, April Sess., 1887 was given to the jury on the preceding Saturday; and that on the day in question (October 16th) the jury were still deliberating, and their verdict was received on the following day (October 17th).

(7) Total amount actually paid to guards in charge of United States prisoners while in attendance on court during 1887 and 1888, and not received from the United States, $92. Section 830, Rev. St., provides that the marshal shall be paid, among other items, 'his expenses necessarily incurred for fuel lights and other contingencies that may accrue in holding courts within this district. ' During the years 1887 and 1888 there was no cage for the keeping of prisoners during the period of attendance upon court awaiting trial. It was absolutely necessary that the prisoners ordered up from the county prison should be...