United States v. Mahon Mahon v. United States

• Decision Date: 02 November 1896
• Docket Number: 357,Nos. 356,s. 356
• Citation: 164 U.S. 81,17 S.Ct. 28,41 L.Ed. 357
• Parties: UNITED STATES v. McMAHON. McMAHON v. UNITED STATES
• Court: U.S. Supreme Court

164 U.S. 81

17 S.Ct. 28

41 L.Ed. 357

UNITED STATES

v McMAHON.

McMAHON

v. UNITED STATES.

Nos. 356, 357.

November 2, 1896.

These were writs of error sued out by both parties, to review a judgment of the circuit court of appeals for the Second circuit. affirming, except in one particular, a judgment of the circuit court for the Southern district of New York for $4,843.60 in favor of the petitioner, McMahon, for fees and disbursements as marshal for that district from July 7, 1885, to January 12, 1890. The opinion of the court of appeals is found in 26 U. S. App. 687, 13 C. C. A. 257, and 65 Fed. 976.

The assignments of error filed by both parties are set out in the opinion of the court.

Asst. Atty. Gen. Dodge, for the United States.

R. R. McMahon, for McMahon.

Mr. Justice BROWN delivered the opinion of the court.

In these cases the government assigns as error:

1. The allowance of a charge of two dollars per day for attending criminal examinations in separate and distinct cases upon the same day; these examinations being on some days all before the same commissioner, and on others before different commissioners. The evidence does not disclose how much of this amount is applicable to each class of cases.

By Rev. St. § 829, the marshal is allowed 'for attending the circuit and district courts, * * * and for bringing in and committing prisoners and witnesses during the term, five dollars a day,' and 'for attending examinations before a commissioner, and bringing in, guarding and returning prisoners charged with crime, and witnesses, two dollars a day; and for each deputy, not exceeding two, necessarily attending, two dollars a day.' If the fee were two dollars for attending examinations simply, it might well be held that he was entitled to that amount for each examination, though there were a dozen in a single day; but, as the allowance is not for each examination, but for each day, we think it clear that the marshal is only entitled to a single fee. It is scarcely possible to suppose that he would be allowed but five dollars for attending court, irrespective of the number of cases disposed of or of the number of prisoners brought in and committed, and yet be allowed separate fees in each case before a commissioner, which, in the aggregate, might be double the amount allowed for attending court. McCafferty v. U. S., 26 Ct. Cl. 1.

But when a marshal attends examinations before two different commissioners on the same day, we think he is entitled to his fee of two dollars for attendance before each commissioner. In the case of U. S. v. Erwin, 147 U. S. 685, 13 Sup. Ct. 443, we held that a district attorney was entitled to charge a per diem for services before a commissioner upon the same day that he was allowed a per diem for attendance upon court, and the argument controlling our opinion in that case is equally applicable here. It is true that in that case the charge was for attending before the court and before a single commissioner upon the same day; but where the officer attends before two or more commissioners, who may hold their sessions at a distance from each other, we see no reason why he should not be entitled to a fee in the case of each commissioner.

2. The allowance of two dollars per day to special deputy marshals for attendance before a commissioner on November 2, 1886, 'said day being an election day.' The finding is that for his service upon this day each deputy marshal received a per diem of five dollars. It is not directly found by the circuit court that these special deputies were appointed pursuant to Rev. St. § 2021, tit. 26, but as it is so admitted in the briefs of counsel, and as this title makes the only provision for the appointment of special deputies, we may assume that to be the fact. The duties of such special deputies, who are appointed by the marshal to aid and assist the supervisors of election, are fixed by sections 2021-2023. They are , in general, to keep the peace, support and protect the supervisors of the election in the discharge of their duties, preserve order, to arrest and take into cutody any person offending against the law, when (section 2023) 'the person so arrested shall forthwith be brought before a commissioner * * * for examination of the offenses alleged against him.' By section 2031, 'there shall be allowed and paid to * * * each special deputy marshal who is appointed and performs his duty under the preceding provisions, compensation at the rate of five dollars per day for each day he is actually on duty, not exceeding ten days.'

As it appears by these sections that the attendance of the deputy before the commissioner is incidental to his service in arresting the fraudulent voter and taking him before the commissioner, we think it is covered by the per diem provided by section 2031. The allowance of five dollars per day was evidently intended to be full compensation for all services performed by him as such deputy. The assignment is well taken.

3. Exception is also taken to the allowance of fees at the rate of 10 cents per mile for transporting convicts from New York City to the state penitentiary in Erie county, in the Northern district of New York, instead of the actual expense of such transportation. By Rev. St. § 829, the marshal is allowed 'for transporting criminals, ten cents a mile for himself and for each prisoner and necessary guard,' with the following exception: 'For transporting criminals convicted of a crime in any district or territory, where there is no penitentiary available for the confinement of convicts of the United States, to a prison in another district or territory designated by the attorney-general, the reasonable actual expense of the transportation of the criminals, the marshal and the guards, and the necessary subsistence and hire.' It appears that no prison in the state of New York has been expressly designated by the attorney general for the confine- ment of federal convicts, but by the state law it is the duty of the keepers of state prisons to receive and keep such convicts when sentenced to imprisonment therein by any court of the United States sitting within the state. Literally, the service charged for in this case does not fall within the second paragraph of...