Nixon v. United States

• Decision Date: 08 May 1897
• Parties: NIXON v. UNITED STATES.
• Court: U.S. District Court — Eastern District of Tennessee

82 F. 23

NIXON v. UNITED STATES.

United States District Court, E.D. Tennessee.

May 8, 1897

Pritchard & Sizer, for complainant.

James H. Bible, U.S. Atty.

CLARK District Judge.

This suit is brought by the plaintiff against the United States to recover upon an account for fees alleged to be due to plaintiff as United States marshal for the Eastern district of Tennessee, his term of office extending from August 27 1887, to April 13, 1889. The fees claimed are for services of different kinds. The case has been referred to a special master, and the questions are now raised by the exceptions to the master's report. The litigation has been limited by the reference and the exceptions. The fees claimed were disallowed by the comptroller of the treasury, and hence the present suit. These exceptions do not raise any question of fact, but proceed upon the ground that, taking the facts as found by the special master, there is error in the conclusions of the master upon these facts. This renders it unnecessary in this opinion and finding to discuss the facts and reference to the report of the special master is sufficient.

It is well to keep in view, in the examination of the specific exceptions, the general rule of law applicable to fees and costs claimed as against the public, which was stated in U.S. v. Shields, 153 U.S. 91, 14 S.Ct. 736, as follows:

'Fees allowed to public officers are matters of strict law depending upon the very provisions of the statute. They are not open to equitable construction by the courts, nor to any discretionary action on the part of the officials.'

This is a rule of interpretation of general application to costs and fee bills.

The first exception is to the ruling of the master in disallowing the claim for certain 'endeavor expenses,' because not supported by vouchers nor by itemized account. The particular clause of section 829 of the Revised Statutes on which this claim is based is as follows:

'For expenses while employed in endeavoring to arrest, under process, any person charged with or convicted of a crime, the sum actually expended, not to exceed two dollars a day, in addition to his compensation for service and travel.'

The master finds that a report by a special examiner of the department of justice was made to the attorney general April 12, 1888, recommending the disallowance of various items in an account of the present petitioner. Among the reasons stated for the disallowance was the following:

'Neither has the marshal in a single instance, as far as I can learn, furnished the department with vouchers for these expenses of arrest, which should, under the regulations on the treasury department, be attached to each charge of such a nature. Strict justice would doubtless strike out every 'endeavor to arrest' and every charge for 'subsistence of prisoners' found in the marshal's account unless itemized for each day, and only the amount actually expended therein, not exceeding the limit charged for one day, viz. two dollars ($2.00). The department of justice, in the register of said department, especially calls the attention of officials to this matter in circular of 'Instructions as to Accounts,' page 243.' And the master finds that a copy of this report was mailed to the petitioner May 18, 1888, from which it is, of course, found that the marshal had express notice of the ground on which the items in his accounts were disallowed. It would seem to be clear, therefore, that if the comptroller might lawfully require specific items or vouchers for items, which make up an account for expenses of this kind, the disallowance, of the account for such expense was proper. In U.S. v. Fletcher, 147 U.S. 666, 13 S.Ct. 435, the supreme court said:

'The comptroller, however, had a right to require items of these expenses to be furnished. The smallness of the amount allowable under the statute does not affect the principle, unless at least a showing be made that it is impossible to furnish the particulars.'

See, also, In re Crittenden, 6 F. Cas. 816.

If, therefore, as thus decided, the comptroller may require, as a condition of allowing a claim of this character, that it shall be supported by an itemized account of vouchers, it necessarily follows that when the account is disallowed for this or any other legally valid reason, suit cannot be successfully maintained against the government without supporting the account with the same character of evidence. The marshal obviously cannot be permitted to present to the treasury for approval an account without items or vouchers legally required by the treasury officials, and, when the account is disallowed, institute suit and recover judgment against the United States upon a lump sum charged, being the maximum amount allowed by law, as is done here. To rule that he may do so would be manifestly inconsistent with the holding that the comptroller may require the items or vouchers for the items of the account. The brief, in support of this exception, proceeds largely upon the ground that the marshal is allowed the absolute or lump sum of two dollars per day, not only for the purpose of covering actual expenses, but as compensation, to an extent, for the time required in the service. The statute plainly, however, allows only actual expenses, and provides an express limit beyond which the marshal is not permitted to go in the actual expenses incurred, and no claim for time is allowed by the terms of the statute, or any just inference therefrom. Exception 1 is therefore overruled.

Exception 2 raises by far the most serious question in this case. The claim in this item of the account is for mileage charged for traveling to execute subpoenas in criminal cases instituted before United States commissioners. The facts, as found by the special master, are these: United States commissioners are in the habit of issuing warrants for the arrest of a defendant charged with a violation of the internal revenue law, and, with such warrants, would issue a subpoena for the witness or witnesses whose testimony was intended to sustain the charge; and the practice was, in case the marshal should find and arrest the defendant, to proceed to execute the subpoena for the witnesses to appear before the commissioner, and before whom the defendant was to be taken. In the event the defendant was not found and the warrant of arrest not executed, the subpoena, of course, could not be executed, and there would be no case set and no trial at which the witnesses could appear. The subpoena, in such cases, did not direct the marshal to summon the witnesses before any particular commissioner, nor to attend at any time or place. The subpoena was necessarily issued in blank in these respects, and was completed on the marshal's return of the subpoena when executed, whereon the time and place of trial and the commissioner and particular case were given. It is certain, therefore, that the command in the subpoena to summons was in fact understood both by the commissioners and the marshal to be a conditional direction, and this process was to be executed only in the event the warrant of arrest should first be executed. The report of the master proceeds upon the ground that a subpoena in the hands of the marshal under such circumstances was not a complete process or authority in fact on which the marshal might lawfully travel, but was only process to be executed on condition, and that no service could have been rendered with respect to this particular process, such as would authorize the mileage charge for its execution, until after the warrant of arrest was executed, when, for the first time, the subpoena would become a complete authority to the marshal to execute, on which he did or could lawfully travel. It is not disputed that where, in fact, after execution of the warrant of arrest, the marshal traveled further to execute a subpoena, under such circumstances the additional travel was paid for. The contention for the marshal is that mileage may be lawfully charged on the subpoena, just as on the warrant of arrest, both being in his hands during the travel; and the case of U.S. v. Harmon, 147 U.S. 268, 13 S.Ct. 327 is relied on to sustain this contention. The district attorney relies in part upon section 7 of the act of 1875 (18 Stat. 334), providing that 'no person shall be entitled to an allowance for mileage or travel not actually or necessarily performed'; but in U.S. v. Fletcher, 147 U.S. 666, 13 S.Ct. 434, it was said that this provision refers only to cases in which process is sent by mail to a deputy to be served at a place remote from the office whence the process has issued. And this view would make that provision of the statute inapplicable to the present case. Under the existing law, no such practice as that now in question is any longer possible.

In the case of U.S. v. Harmon, 147 U.S. 279, 13 S.Ct. 329, the agreed statement of the facts was as follows:

'That in some instances the officer had in his hands for service several precepts against different persons for different causes, and made service of two or more such precepts in the course of one trip, making but one travel to the most remote point of service, but charging full travel on each precept.'

And the same interpretation was put upon this statute (Stat. 1875 Sec. 7), in U.S. v. Harmon, 147 U.S. 280, 13 S.Ct. 327, the court in that respect concurring in the opinion of Atty. Gen. Devens, 16 Op. Attys. Gen. U.S. 165169. In U.S. v. Harmon, as will appear from the agreed statement of facts, the writs in the hands of the officers were against different persons, and in different cases, while in the case under consideration the warrant of arrest and subpoena are precepts in the same case, but for different...