United States v. Colman

• Decision Date: 05 October 1896
• Docket Number: 303,304.
• Citation: 76 F. 214
• Parties: UNITED STATES v. COLMAN. COLMAN v. UNITED STATES.
• Court: U.S. Court of Appeals — Seventh Circuit

76 F. 214

UNITED STATES v. COLMAN.

COLMAN v. UNITED STATES.

Nos. 303, 304.

United States Court of Appeals, Seventh Circuit.

October 5, 1896

J. H M. Wigman, for the United States.

Elihu Colman, per se.

Before WOODS, JENKINS, and SHOWALTER, Circuit Judges.

WOODS Circuit Judge.

Elihu Colman brought his petition against the United States seeking judgment for sums alleged to be due for services rendered by him as United States attorney for the Eastern district of Wisconsin, between February 17, 1890, and April 24, 1892. His demands were allowed in part only, and each party has prosecuted a writ of error. The court, in accordance with the statute (24 Stat. 505), made a special finding of the facts, and stated its conclusions of law.

Items to the amount of $95.60 were allowed for attendance before United States commissioners, 'for necessary examinations preliminary to the issuance of warrants, * * * to determine whether or not warrants should issue, and whereupon warrants were afterwards actually issued, duplicate charges for the same day being excluded,' and items amounting to $145 for like attendance 'for necessary examinations preliminary to the issuance of warrants * * * to determine whether warrants should issue, and upon which warrants were afterwards actually issued, but upon the same days for which allowance has been made in the foregoing third finding, or in former accounts duly allowed. ' These allowances, it is insisted, are justified by the clauses of section 824 of the Revised Statutes, which authorizes a per diem and mileage for examinations 'before a judge or commissioner of persons charged with crime. ' On the authority of U.S. v Patterson, 150 U.S. 65, 14 Sup.Ct. 20, and U.S. v Stanton, 17 C.C.A. 475, 70 F. 890, it is contended, on the contrary, that the section does not apply to such preliminary examinations where no formal accusation has been made, and witnesses are not examined. We are constrained to accept the latter view. As is said in the Patterson Case, 'the inquiry is never limited to the fact or character of services, but always extends to the statutory authority for compensation'; and while that case had direct reference to the right of a commissioner, under section 847, to compensation 'for hearing and deciding on criminal charges,' the conclusion of the court was predicated on the proposition, equally applicable to section 824, that 'a criminal charge, strictly speaking, exists only when a formal written complaint has been made against the accused, and a prosecution initiated,' or, as it is also expressed, that, 'in the eyes of the law, a person is charged with crime only when he is called upon in a legal proceeding to answer such a charge.' Accordingly, in the Stanton Case, the court of appeals for the Second circuit held that the section does 'distinctly require that there should be that formal accusation of crime which makes the investigation of the case by examination of witnesses before the commissioner a judicial function of that officer.' The examinations in question are not found to have been of that character, but seem rather to have been for the purpose of determining whether formal charges should be made.

The third specification of error on behalf of the United States is upon an allowance of $254.60 for attendance upon examinations of parties charged with crime; but objection is made in the brief only to a single item of $12.80, allowed as mileage, which it is alleged was unnecessary. The assignment of error should have specified that item as erroneous, and not the sum total, made up in the main of items which are not questioned. See rule 11 of this court (11 C.C.A. cii., 47 F vi.). Besides, the finding of the court is that the mileage was necessary, and it may have been, though charged for attendance upon successive days before the same commissioner. The decision in U.S. v. Shields, 153 U.S....