McGourin v. United States
| Decision Date | 09 June 1900 |
| Citation | 102 F. 553 |
| Court | U.S. District Court — Northern District of Florida |
| Parties | McGOURIN v. UNITED STATES. |
Buckner Chipley and Henry Bellinger, for petitioner.
John Eagan, U.S. Dist. Atty.
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 causes of this nature. The petition, having been dismissed before the entry of final judgment, was revived under the act of February 26 1900, and now comes on for final hearing on petition demurrer, plea, and agreement of facts. Taking up the schedules, as they are presented in the petition and demurred to in toto by the district attorney, I have arrived at the following conclusions relative to the legal principles applicable thereto:
Schedule A includes charges for docket entries relative to the issue of process, return, date of taking affidavit, date of hearing disposition of cause, etc., in compliance with the order made by this court on the 5th day of May, 1881, made by Circuit Judge Pardee, whereby commissioners are required to keep such a docket, in which shall be entered the time of taking the affidavit, the issuing of process, the hearing, and orders relative to bail and discharge and binding over. 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 such entries, under paragraph 8, Sec. 828, Rev. St. which reads, 'For entering any return, rule, order, continuance, judgment, decree or recognizance, or drawing any bond, or making any record certificate, return or report, for each folio, fifteen cents' (which act is made applicable to commissioners by paragraph 7, Sec. 847, Rev. St.), 'and for any other service the same compensation as is allowed to clerks for like service.
Section 854, Rev. St., provides:
In the case of U.S. v. Allred, 155 U.S. 591, 15 Sup.Ct. 231, 39 L.Ed. 273, the supreme court held:
'A commissioner of a circuit court is an officer of the court, authorized by law, and is entitled to his fees * * * for making entries on the docket, in various cases, of the name of an affiant, his official position, if any, date of issuing warrant, name of defendant and witnesses, and final disposition of the case, when required by rule of court.'
And the same court, in passing on the construction of paragraph 8, Sec. 828, Rev. St., in U.S. v. Kurtz, 164 U.S. 50, 17 Sup.Ct. 15, 41 L.Ed. 347, relative to the making up of final records, holding such to be but an instrument, in connection with analogous entries to the one in litigation under this schedule, says:
'By his method of computation the clerk charges for each entry many of which are less than a dozen words in length, as for one hundred words.
This may be proper where the charge is made under the first clause of the paragraph, 'for entering any return, rule, order, etc.,' upon the journals of the court.'
See, also, Cavender v. Cavender, 10 F. 828, 3 McCrary, 383. This question has been adjudicated before by this court. See Marsh v. U.S. (D.C.) 88 F. 879.
In view of these decisions, my attention has been called to a decision of the comptroller (In re Cowles, 5 Dec.Compt. 120), which, together with a former decision of the comptroller (In re Speed, 1 Bowler, 197), are the only cases I have been able to find bearing on this question. After reading the latter decision over carefully, I am unable to find any reference to the cause of U.S. v. Kurtz, although the latter was decided in October, 1896, and the former case in September, 1898. The comptroller either was unacquainted with this case, or chose to ignore the latter clause in the Kurtz Case as obiter dicta; but, even conceding that such is the case, it seems to me that in a decision of as far-reaching consequence as this one of the comptroller, an opinion of the supreme court should be entitled to some consideration, or, at least, comment. In the Cowles Case the comptroller says:
'If the contention of the clerk, in the broad sense in which he asserts it, is correct, that he is entitled to a fee of 15 cents for every entry he may make in making up the record in a cause concerning a rule, return, order, continuance, judgment, decree, or recognizance, regardless of the number of words in such entry, then no meaning is attached whatever to the words, 'for each folio, fifteen cents."
The comptroller seems to misconstrue the meaning of the word 'entry.' In the making up of records, especially journal entries, the entry is the only evidence of a rule, order, return, etc. So far as the statute relative to fees is concerned, the entry is the thing itself. It is not an entry concerning a rule, but is the entry of the rule and order itself. It is certainly true that congress intended to attach meaning to these words.
In the practice of the court it has never been contended that a caption was essential to the separation of entries, in order to make such distinct and independent. The officers charging these fees have never admitted, and in reason could not admit, that because separate matters referring to or embodying separate proceedings were collected under a caption, merely descriptive of a cause then pending before the court, thereby fixed and solidified such entries into a single record. If such entries are properly separated into paragraphs, so that they can be distinguished as applicable to certain proceedings, they seem to me to be as separate and distinct as though the same caption were interpolated at the beginning of each of such entries. The comptroller seems to hinge his decision on the question of separate or common caption, but I am unable to see the nice distinction drawn by him. The commissioner's docket is to this court what the journal is to the clerk. The ruling of the supreme court is entirely applicable to all the facts relative to these items, and hence govern entirely. In the finding of facts filed in this cause a specimen of such docket entries is set out in full, taken from an actual entry made, and to me fully bears out the contention of the petitioner relative to the separation of such entry.
Schedule B: Paragraph 3, Sec. 847, Rev. St., provides, 'for hearing and deciding on criminal charge, five dollars a day for the time necessarily employed. ' The statute does not provide any description of criminal charges such as are properly brought before a court, leaving the question for judicial interpretation. It is my opinion that when a prisoner is brought before a commissioner in accordance with law who stands charged with the commission of a criminal offense against the United States, and the commissioner is thereby called upon to exercise a judicial function of his office, in whatever manner this may be, whether to determine probable cause for binding him over, to admit him to bail, to discharge him on bond, or to commit him temporarily pending further investigation, he has thereby complied with the above provision, and is entitled to his per diem. When the district court is not in session, a commissioner may properly take jurisdiction to fix bail for a prisoner under arrest upon a bench warrant or capias issued upon an indictment found before a federal court; and if the deputy marshal who makes the arrest carries the man before the commissioner, it is the commissioner's duty to fix the amount of bail, and, in default of bond, to issue final mittimus, which act is clearly judicial. In U.S. v. Jones, 134 U.S. 483, 10 Sup.Ct. 615, 33 L.Ed. 1007, the supreme court held:
'The decision of a commissioner of the circuit court upon a motion for bail and the sufficiency thereof * * * are judicial acts, on the hearing and deciding of criminal charge, within the meaning of Rev. St. Sec. 847, providing for per diem compensation.'
See, also, Harper v. U.S., 21 Ct.Cl. 56, and Rand v. U.S. (D.C.) 36 F. 671.
And indeed, this interpretation seems also to have been accepted by congress in framing the provision in the act of May 28, 1896, providing a new schedule of fees for the commissioners. It appears from the schedule that all these per diems were earned and charged before the proviso in said act became effective, to wit, July 1, 1897. Item 3 in said schedule differs from the other items in this: that it is claimed...
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