Swift v. United States
| Decision Date | 06 April 1904 |
| Docket Number | 856. |
| Parties | SWIFT v. UNITED STATES. |
| Court | U.S. District Court — District of Massachusetts |
Henry W. Swift, pro se.
Henry P. Moulton, U.S. Atty.
This is a suit by Henry W. Swift, United States Marshal for the District of Massachusetts, to recover from the United States certain disbursements made by him, which, in the settlement of his accounts, were disallowed by the Comptroller. The case was heard on petition, answer, and agreed statement of facts.
The first item was a disallowance of $54 paid as a per diem compensation for certain additional bailiffs, in excess of three in number, and not exceeding six altogether, who were in attendance upon the Circuit and District Courts on days when only one judge was present, and held both courts at the same time. The disallowance occurred during the quarter ending September 30, 1895. The position of the government is based upon the Comptroller's construction of the following provision in the sundry civil appropriation act of March 2, 1895: 'For pay of bailiffs and criers, not exceeding three bailiffs and one crier in each court. * * * ' Act March 2, 1895, c. 189, 28 Stat. 958 (U.S. Comp. St. 1901, p. 2590). In construing this provision, the Comptroller said:
' 2 Comp. Dec. 534.
Section 715 of the Revised Statutes (U.S. Comp. St. 1901, p. 579) authorizes the appointment by the marshal of bailiffs for the Circuit and District Courts, not exceeding five for each count. The effect of the foregoing provision in the appropriation acts of 1895 and the years following was to limit the number of bailiffs to three for each court, who should be paid from the appropriation for those years. The words 'in each court' manifestly refer to the Circuit and District Courts mentioned in section 715. They may also be held, by construction, to refer to different divisions of the same court, and also to the Circuit Court of Appeals. But there is nothing in this provision to justify the ruling that 'each court' has reference to occasions when the business of the Circuit and District Courts is crowded upon one judge holding both courts at the same time and place. Puleston v. United States (D.C.) 88 F. 970, 977.
United States v. King, upon which the Comptroller relies, lends no support to his position, but is rather antagonistic to it. That case held that, while a clerk was not entitled to two per diems under sections 828, 831, Rev. St. (U.S. Comp. St. 1901, pp. 639, 640), when the Circuit and District Courts sit at the same time, he was entitled to two per diems when the court sits in different places, since the words 'at the same time' in section 831 should, by construction 'be limited to cases where the court sits not only at the same time, but at the same place.' 147 U.S. 676, 682, 13 Sup.Ct. 439, 37 L.Ed. 328.
The Comptroller's position is not only unsupported by the statute or by any authority, but the argument or reason on which it rests, that only three bailiffs are necessary under the circumstances, has little force. The duties of bailiffs are not limited to mere attendance upon the sessions of the courts, since section 715 specifically declares that they are to attend upon the grand and other juries, and 'for other necessary purposes.' The attendance of the bailiffs upon the grand jury, which may be in session for a week or more at different times, or upon the petit jury when they retire to consider their verdict, necessitates their absence from the courtroom at the same time the court remains in session for the transaction of business. If the duties of bailiffs were limited to the maintenance of order in the court while in actual session, there might be some weight in the argument that only three bailiffs are necessary when both courts are held at the same time by one judge.
There is a confused notion underlying the government's position that the claim of six bailiffs to a single per diem each when both courts are held at the same time and place is the same as the claim of three bailiffs to double per diems when both courts are held at the same time and place. The two cases are, however, radically different. While Congress has carefully guarded against the receipt by the same officers of two per diems, it has not by any legislation denied the payment of a single per diem to such officers. The provision in section 715 that, 'when both courts are in session at the same time,' the bailiffs are only to be paid 'for attendance on one court,' like the provision in sections 831 (U.S. Comp. St. 1901, p. 640), relates to double compensation to the same officers, and has no bearing on the question now under consideration.
The appropriation act of 1895 permits three bailiffs each for the Circuit and District Courts. When three bailiffs attend upon the two courts in obedience to the orders of adjournment and in conformity with their duty, their compensation of $2 a day should not depend upon the accident of the presence of one or two judges upon the adjourned day. Such a ruling is clearly unjust, and should only be upheld when the statute admits of no other construction.
The position in which the law respecting the payment of bailiffs would stand by the adoption of this ruling of the Comptroller may be illustrated as follows: On Monday, in Boston, the circuit judge holds a session of the Circuit Court, and the District Judge holds a session of the District Court, and each court is adjourned to meet on Tuesday morning at 10 o'clock. On Tuesday the six bailiffs, in obedience to the orders of adjournment, are in attendance upon the courts.
(1) It may happen that no judge is present on this day, and both courts are adjourned to the following day upon the written orders of the judges, under sections 583 and 672 of the Revised Statutes. In such a case the six bailiffs are entitled to their per diems. United States v. Pitman, 147 U.S. 669, 13 Sup.Ct. 425, 37 L.Ed. 324; United States v. McCabe (C.C.) 122 F. 653; 3 Comp.Dec. 522.
(2) It may happen that only the district judge is present on this day, and holds the District Court, and that the Circuit Court is adjourned upon the written order of the judge, under section 672 (U.S. Comp. St. 1901, p. 546). In that case the six bailiffs are entitled to their per diems.
(3)It may happen that only the district judge is present on this day, and that he first opens the District Court for the transaction of business, then adjourns that court, and then opens the Circuit Court for the transaction of business, and adjourns it. In that case, there being a separate session of each court at different times, the six bailiffs are entitled to their per diems.
(4) Instead, however, of opening and adjourning each court separately, the district judge may open both courts at the same time, and proceed with the transactions of the business in both courts, and at the close of the day adjourn both courts until the following day. Under these circumstances, notwithstanding the six bailiffs are in attendance in obedience to the previous orders of adjournment, and notwithstanding their services may be required for attendance upon the grand jury, or for other necessary purposes, it is maintained that it is the duty of the marshal to inform three of the bailiffs at their services are not necessary, and that, under the law, he cannot pay them for attendance on this day.
A construction of the law which will lead to such results cannot be adopted in the absence of clear and unmistakable legislation by Congress.
The disbursements covered by this item were proper, and should have been allowed in the marshal's account.
The second item was a disallowance of $848 paid to bailiffs for attendance on court for the same days on which they also attended court as deputy marshals, and thereby earned a fee of $5 each for the marshal. The disallowance was on the ground that a deputy marshal who represents the marshal in court, and earns for him a per diem fee of $5, cannot at the same time be allowed payment for services as bailiff. 2 Comp.Dec. 438, 530.
In United States v. Saunders, it was held that a clerk in the office of the President of the United States, who was also the clerk of a committee of Congress, was entitled to receive the compensation allowed by law for each office. The court declared that sections 1763, 1764, and 1765 of the Revised Statutes (U.S. Comp. St. 1901, pp. 1205, 1206, 1207) had no application to the case of two distinct offices, each with its own duties and compensation, and both might be held by the same person at the same time. 120 U.S. 126, 7 Sup.Ct. 467, 30 L.Ed. 594. In Preston v. United States (D.C.) 37 F. 417, it was held that, under the rule laid down in United States v. Saunders, there was no incompatibility between the offices of crier and messenger of the courts, and that the same person might perform the duties and receive the compensation attached to both offices. In that case it was said the evidence showed that the two duties-- messenger and crier-- were not only compatible, but were distinct in their character, and that one duty was in no wise connected with or in continuation of the other. In Dill v. United States it was held that...
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