Marsh v. United States
| Decision Date | 16 May 1898 |
| Citation | 88 F. 879 |
| Parties | MARSH v. UNITED STATES. |
| Court | U.S. District Court — Northern District of Florida |
F. W Marsh, in pro. per, and Buckner Chipley, for petitioner.
John Eagan, for the United States.
The petition shows that the petitioner has complied with all the requisites of the act of congress of March 3, 1887 conferring jurisdiction on this court to hear cases of this nature. Taking up the schedules as they are presented in the petition, and demurred to in toto by the government, I am able to discern the following principles applicable thereto:
Schedule A: For entries in the minutes of the court in criminal cases charged as separate entries as to each proceedings, but disallowed by the comptroller on the ground that they must be counted consecutively, and allowed as a single entry for any and all proceedings on a particular day. It may be well to preclude what may be said as to this question by setting forth a copy of the order of the court in the premises:
'It appearing to the court that the adoption of forms as a guidance to the clerk of this court in making the journal entries in criminal cases would be both expedient, and a protection to said officer, the following forms are hereby adopted, and declared to be proper entries in criminal cases; each motion, order, plea, or sentence to be made separate and distinct. ' From the order of April 7, 1896.
The court has therefore set out what shall be criminal entries, and that it is not a mere recital of proceedings, but places on record the orders, motions, pleas, verdicts, sentences, etc., incident to the prosecution; separating each in a paragraph by itself. Petitioner contends that, as each order or proceeding is entered in a separate paragraph, he is entitled to be paid at the rate of 15 cents per folio for each of said entries, under section 828, subd. 8, Rev. St., which reads:
'For entering any return, rule, order, continuance, judgment, decree, or recognizance or drawing any bond, or making any record, certificate, report or return, for each folio, fifteen cents.'
And section 854, Rev. St.:
'The term folio in this chapter shall mean one hundred words, counting each figure as a word; when there are over fifty and under one hundred words, they shall be counted as one folio; but a less number than fifty words shall not be counted except where the whole statute, notice, or order contains less than fifty words.'
The supreme court, in passing upon the construction of the former section relative to the making up of the final record in criminal cases, holding such to be but one instrument, says, in connection with the entries in litigation here:
' U.S. v. Kurtz, 164 U.S. 50, 17 Sup.Ct. 15.
The same view of this paragraph is taken by the court in Cavender v. Cavender, 3 McCrary, 383, also reported in 10 F. 828.
The fact that the entries are kept separate, as to each proceeding, under order of court, and for a purpose which the court has already adjudged sufficient, makes the method of computing the folios seem correct; and the clerk's fees should be allowed in accordance with this method.
Schedule B: Consisting of several items for 'swearing on the first day all persons summoned, and those thereafter on special venire, before they had qualified and been accepted as jurors, as to the truth of their answers relative to their qualifications as grand or petit jurors. ' Disallowed by accounting officers, and claimed to be merged in the docket fee. It is the established practice in this district, on the first day of the term, for the clerk to call the names of those persons appearing on writ of venire facias whom the marshal has returned as found. They are then sworn by the clerk, at the bar of the court, 'well and truly to answer all questions touching their qualifications to sit as petit (grand) jurors in and for the Northern district of Florida'; and those of them found to possess the statutory qualifications are impaneled, and those not qualified are then excused, without ever becoming jurors at all, or serving in such capacity. It is contended by petitioner that this service does not fall within the exceptions of subdivision 4, Sec. 828, Rev. St., which provides, 'For administering an oath or affirmation, except to a juror, ten cents,' but that the oath is not one to a juror, but to a person who has presented himself pursuant to summons, and who has not qualified as such. Bouvier's Law Dictionary defines a juror to be 'a man who is sworn or affirmed to serve as a juror.' 1 Bouv.Law Dict. 684. Also 2 Toml.Law Dict. p. 299: 'One of those persons who are sworn on a jury.' And Burrill's Law Glossary (volume 2): 'One of a jury; a person sworn on a jury; a juryman.' The exception in the above paragraph of the Revised Statutes is undoubtedly made to apply to the oath administered to the jurors on voir dire, when being examined relative to specific cases, and the general oath to the jury; but the claim here is for an oath to a person who has never become a juror, and could not properly be designated by that name. The statute will be strictly construed as against the contention of the government. Judge Hammond has thoroughly and learnedly gone over this question in Clough v. U.S., 55 F. 921, upholding the contention of the petitioner; but, so far as I am able to ascertain, the question has not been passed upon otherwise. As the claim is not for swearing a juror, but a person whom the court has directed to take an oath in order to ascertain his qualifications as a juror, the charge is a proper one.
Schedule C: 'For entry on journals of the court of orders for the removal of United States prisoners, who were at the time confined in county jails, other than at the place of trial, under mittimus of United States commissioners; and for three certified copies of such order, furnished to the marshal; and for filing and entering the return of the marshal. ' This court held in Puleston v. U.S., 85 F. 570, that these charges did not fall within the purview of section 1030, Rev. St., and that a United States marshal was entitled to charge the statutory fee for the service of such orders, and fully investigated and set forth the practice in this connection; approving the case of Taylor v. U.S., 45 F. 538. It is therefore unnecessary to further go into this subject.
Schedule D: For entering orders in the journal of the court remanding prisoners to custody after trial of a cause, and for orders for the production of prisoners for sentence. These charges are analogous to those in Schedule C, and have been disallowed on the same ground. The practice in this regard has been fixed by the court, as set forth in Schedule A, by which it is prescribed that an entry of an order remanding prisoners who are convicted, and before sentence, if same should not be pronounced on the same day as the conviction, should be entered as of course. Hence, if section 1030, Rev. St., has no application, then the clerk would be entitled to his fee. Said section reads: 'No writ is necessary to bring into court any person or prisoner in custody, or for remanding him from the court into custody, but the same shall be done on the order of the court or district attorney, for which no fee shall be charged by the clerk or marshal.'
The only question presented is, does this fee refer to the writs, or to the orders? There is no charge here for a writ or order, but for the entry of a proceeding of the court. It may happen that this is an order of the court for the defendant to appear for sentence, or an order remanding him. The charge is for an entry, and this cannot be affected by this section. The fee there spoken of-- construing it strictly-- refers to the issuance of a writ. At least, a liberal construction in favor of the petitioner would admit of this, and 'words should be construed liberally, in favor of the officer, and not strictly, in favor of the United States. ' McKinstry v. U.S., 40 F. 818 (opinion by Judges Pardee and Lamar); Taylor v. U.S., 45 F. 538; Puleston v. U.S., 85 F. 570.
Schedule E: Issuing praecipe to jury commissioner for the Northern district of Florida, under rule 5, rules of practice of the circuit court. This fee is provided for by subdivision 1, Sec. 828, Rev. St.: 'For issuing and entering every process, commission * * * or other writ * * * one dollar. ' The issuance of this process is rendered necessary by rule 5, rules of practice of this district, which reads: 'Upon the receipt and entry of an order for filling the jury box (also drawing the jury) the clerk will issue a praecipe to the jury commissioner, citing such order, and directing him to attend on a day certain,' etc. This praecipe is a summons, and the only method prescribed for obtaining the proper attendance of the jury commissioner on the day selected by the clerk for the drawing of the jury. The fee is provided for by this section of the Revised Statutes, and therefore the charge is proper. Goodrich v. U.S., 47 F. 267; Clough v. U.S., 55 F. 921. The former case holds a charge for a praecipe to a jury commissioner to be a proper fee, and the latter that a commission to a supervisor of elections was properly charged for.
Schedule F: For entering memorandum of the filing of any particular paper, in civil causes, filed by and on behalf of the United States, in the record known as the 'Clerk's Combined Docket,' under rule 8, rules of practice of this district. The said rule provides:
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