Erwin v. United States

• Decision Date: 17 January 1889
• Citation: 37 F. 470
• Parties: ERWIN v. UNITED STATES.
• Court: U.S. District Court — Southern District of Georgia

37 F. 470

ERWIN v. UNITED STATES.

United States District Court, S.D. Georgia, Eastern Division.

January 17, 1889

Syllabus by the Court

The act of 22d February, 1875, (18 St.at Large, 333,) which requires that the accounts of district attorneys, clerks, marshals etc., shall be forwarded, 'when approved,' 'to the proper accounting officers of the treasury,' does not make presentation to such officers a condition precedent to a right of action, nor is rejection of a claim by the accounting officers of the treasury such a determination of a 'commission or department authorized to hear and determine, ' in the meaning of the act of March 3, 1887 (24 St.at Large, 505,) as will bar an action in the proper courts.

While the general rule is otherwise, when a statute is silent as to compensation, if additional labor is imposed upon a clerk not in the line of the duties ordinarily appertaining to such an office, and if contemporaneous construction of the statute by the attorney general, and analogous provisions of other statutes subsequently passed, indicate an intention to pay for such services, the officer is entitled to compensation.

A clerk of a circuit or district court of the United States is entitled to compensation for revising the jury-box at the rate of five dollars per day for a period not exceeding three days for a term of the court. The clerk is entitled to charge 15 cents per folio for recording the names, residences, etc of jurors, on a record which he is required to make by a rule of court.

Where his deputy attends a session of the court, the clerk is entitled to a per diem compensation for such attendance, even though the clerk has received a per diem for his personal attendance the same day at a session of the court at another place.

The proviso relative to compensation for attendance of court officers, in the act of August 4, 1886, (24 St.at Large, 253,) was repealed by the proviso covering the same subject-matter in the act of March 3, 1887, (24 St.at Large, 541.) And since the passage of the latter act it is not necessary that business be transacted in court to entitle the clerk to his per diem; it is sufficient if the court be opened for business by the judge.

The offices of clerk and commissioner are compatible. A person who holds two distinct compatible offices may receive the compensation of each. A clerk is given a per diem fee 'for his attendance' at a session of the court; a commissioner is given a per diem fee 'for hearing and deciding,'-- services clearly distinct.

An attachment against a defaulting witness or juror for contempt of court is an independent suit, and a 'cause' for which a docket fee is chargeable under the fee-bill. The clerk is required to make a final record of the proceedings in such a case.

The clerk is entitled to a docket fee for a hearing by the court on application for a warrant for the transportation of a defendant to another district under the provisions of section 1014, Rev. St.

The clerk is entitled to charge for filing each separate paper sent up by commissioners after hearing in criminal cases, and for filing each separate account of deputy-marshals, being the vouchers to accounts current of the marshal.

The fees of the clerk for entering orders approving accounts of marshals, clerks, attorneys, commissioners, etc., as required by the act of February 22, 1875, (18 St.at Large, 333,) and for certified copies of such orders for the department, are properly chargeable against the United States.

Where, by order of the court, the clerk enters upon the minutes, as memorial services in respect to the late vice-president, a proceeding in court of official character, the fee for entering is properly chargeable to the government.

The statute requires that jurors and witnesses shall be paid upon the orders of the court. When the clerk states the accounts of jurors and witnesses, taking their affidavits as to travel and attendance, and presents the accounts stated in a report to the court for its approval, he is entitled to the fee prescribed by the statute 'for making any report.' The original orders signed by the judge should be entered of record, and placed upon file by the clerk, and he is entitled to a fee of 10 cents for filing each.

In a state where the use of local jails for United States prisoners is permitted, whenever a prisoner is committed to jail a copy of the writ of commitment showing grounds thereof should be left with the jailer. In case of a proceeding before a judge or commissioner, in which it is necessary to commit the defendant to jail to await a hearing or pending examination, a writ to commit is necessary, setting forth the cause of detention, and why examination is postponed. After hearing and order committing for trial, a final writ of commitment is necessary, reciting the hearing, finding of probable cause, and that prisoner is committed in default of bail to await trial. Where a defendant is arrested on bench-warrant, and brought before the court, and is committed in default of bail to await trial, the writ of commitment should state the cause of detention until a trial can be had. After conviction a final writ of commitment is necessary setting forth the fact of trial and conviction, and the term of imprisonment prescribed in the sentence. The copy commitment delivered to the jailer should, where practicable, be certified, and bear the seal of the court.

A state law, passed since 1789, cannot affect criminal procedure in the federal courts. Unless there be an express statute to the contrary, the federal courts are governed in criminal causes by the general common-law procedure. A final record was required to be made by the clerk at common law, and the general method of making the record prescribed by the common law should be followed now, subject to such changes as have been wrought by the character of our institution, and the modifications made necessary by the enlarged bill of rights of the federal constitution.

A criminal information must be founded on an affidavit, charging a crime, and a preliminary hearing finding probable cause, and fixing reasonable bail by the committing magistrate, otherwise the proceeding is not in accordance with due process of law, and is contrary to the fourth, fifth, and eighth amendments to the constitution. The proceedings before the committing magistrate showing a compliance with these constitutional provisions, being a necessary part of the proceeding, should be entered upon the final record.

At common law the names of only four witnesses could be included in one writ of subpoena. The witness was served by leaving with him a copy of the subpoena, or a ticket which contained the substance of the writ. It was the duty of the party or his attorney to make the copy subpoenas or tickets, and furnish them, with the writ, to the officer for service. Section 829, Rev. St., requires that the clerk shall insert in each writ of subpoena the names of as many witnesses in a cause as convenience in serving will permit. Where the clerk makes the copy subpoenas or subpoena tickets, and furnishes them to the marshal for service, at the request or by the acquiescence of the district attorney, the clerk is entitled to charge the government for making such copies.

In determining the number of folios in a final record each separate and distinct order, notice, or other paper is to be counted separately, according to the rule prescribed in section 854, Rev. St., and the aggregate of the folios so found is the number of folios in the record.

Marion Erwin, in propria persona.

Du Pont Guerry, U.S. Atty.

FINDING OF FACTS.

SPEER J.

This suit was brought under the act of congress of March 3, 1887 which confers upon the district court of the United States concurrent jurisdiction with the court of claims of all demands against the government not sounding in tort, in amounts not exceeding $1,000, and the same jurisdiction upon the circuit courts of demands exceeding $1,000 and not exceeding $10,000. The issues formed in these novel but salutary proceedings are triable by the court without the intervention of a jury. In the suit before the court the government was represented by the United States attorney, and the plaintiff appeared in propria persona. The claimant was appointed clerk of the district court of the United States for the Southern district of Georgia on the 17th day of March, 1883, and has continued to hold that office until the present time. He rendered, at various times, his accounts for fees claimed to be due by the government, which accounts were duly presented and approved by the court, as required by the Revised Statutes, Sec. 846, and the act of February 22, 1875, (18 St.at Large, 333.) The accounting officers of the treasury department disallowed quite a large number of the items charged. The claimant made up an account for the aggregate amount of these disallowances running back to the date of his appointment, and included therein also similar items for services rendered which had not theretofore been included in the accounts rendered to the department because of the said adverse rulings on the legality of the charges. This account was presented and sworn to in open court in the presence of the district attorney, the claimant stating at the time that the account was for items disallowed in his accounts by the accounting officers of the treasury, and that it was his purpose to bring suit for the same in this court. Upon objection made by the district attorney the court held that it was not necessary or proper for the court to make any order in the premises at that time; that the legality of the charges would be passed upon when the account was sued and should come up for trial regularly. The...