United States v. McCabe

• Decision Date: 04 May 1904
• Docket Number: 503.
• Citation: 129 F. 708
• Court: U.S. Court of Appeals — First Circuit
• Parties: UNITED STATES v. McCABE et al.

129 F. 708

UNITED STATES v. McCABE et al.

No. 503.

United States Court of Appeals, First Circuit.

May 4, 1904

Charles A. Wilson, U.S. Atty.

Rathbone Gardner, for defendants in error.

Before PUTNAM, Circuit Judge, and ALDRICH and LOWELL, District Judges.

PUTNAM Circuit Judge.

In this case the United States brought a suit on the statutory bond of McCabe as marshal for the District of Rhode Island. The matters in controversy are per diem payments made to the crier and the bailiffs of the Circuit Court for that district in July, August, and September, 1899. They were charged in the marshal's account, and he paid into the treasury only the balance shown thereby. This suit was instituted accordingly, the United States claiming that the payments were unauthorized. The trial in the Circuit Court was by the presiding judge, a jury having been waived under the statute and the judgment was for the defendants. Thereupon the United States took out this writ of error. The learned judge of the Circuit Court gave a full opinion on the merits, with which we agree; but these controversies have been so protracted and taken so many phases, that we feel disposed to supplement what he said.

The statutes bearing upon this question are as follows: Section 583 of the Revised Statutes (U.S. Comp. St. 1901, p. 478) reads:

'If the judge of any District Court is unable to attend at the commencement of any regular, adjourned, or special term the court may be adjourned by the marshal, by virtue of a written order directed to him by the judge, to the next regular term, or to any earlier day, as the order may direct.'

Section 672 of the Revised Statutes (U.S. Comp. St. 1901,p. 546) reads:

'If neither of the judges of a Circuit Court be present to open and adjourn any regular, or adjourned, or special session, either of them may, by a written order directed alternatively to the marshal, and, in his absence, to the clerk, adjourn the court from time to time, as the case may require, to any time before the next regular term.' Criers and bailiffs are appointed under the following section of the Revised Statutes:

'Sec. 715 (U.S. Comp. St. 1901, p. 579). The Circuit and District Courts may appoint criers for their courts, to be allowed the sum of two dollars per day; and the marshals may appoint such a number of persons, not exceeding five, as the judges of their respective courts may determine, to attend upon the grand and other juries, and for other necessary purposes, who shall be allowed for their services the sum of two dollars per day, to be paid by and included in the accounts of the marshal, out of any money of the United States in his hands. Such compensation shall be paid only for actual attendance, and, when both courts are in session at the same time, only for attendance on one court.'

The act approved on March 3, 1899, c. 424, 30 Stat. 1116, contains the following provision:

'For any of bailiffs and criers, not exceeding three bailiffs and one crier in each court, except in the Southern District of New York: provided, that all persons employed under section seven hundred and fifteen of the Revised Statutes shall be deemed to be in actual attendance when they attend upon the order of the courts: and provided further, that no such person shall be employed during vacation.'

Similar provision had been enacted in several previous years.

The various days for which the payments in dispute were made were days to which the Circuit Court had been specifically adjourned by written orders. No business was transacted on any of them, except adjournments in accordance with further written orders.

Under section 715 of the Revised Statutes (U.S. Comp. St. 1901, p. 579), criers are appointed by the court, and therefore may well be regarded as constitutional officers. Const. art.2, Sec. 2, cl. 2. Section 715 gives the other persons appointed under it no designation, but they are described by several statutes as bailiffs, thus securing to them a certain official standing. Criers are not customarily sworn, and bailiffs, not being constitutional officers, are neither customarily nor necessarily sworn. The appointments of the latter are usually made by oral designations by the marshal, without any former order by either judge or court. They are for no specific periods, and the appointees are removable at will in the most informal manner. Nevertheless, by long-continued usage, supplemented by their recognition in the statutes as bailiffs, they must be regarded as having a connection with the courts, continuous until dissolved by some act of either the judge or marshal. It follows that, while bailiffs are not constitutional officers, they are 'officers of the court,' by common understanding, and within the meaning of the expression as used in United States v. Pitman, 147 U.S. 669, 671, 13 Sup.Ct. 425, 37 L.Ed. 324.

United States v. Pitman related to the per diem compensation of the clerk for his attendance at both the Circuit Court and the District Court for the District of Rhode Island. It was decided in 1893, and at that time the essential statutory provisions involved were practically the same as in the case now before us. The precise point technically determined was that the clerk was entitled to his per diem for attendance, regardless of any question whether a judge was present or business transacted. No distinction was made between the two courts. United States v. Nix, 189 U.S. 199, 23 Sup.Ct. 495, 47 L.Ed. 775, related to the attendance of a marshal at courts in the territory of Oklahoma. At page 203, 189 U.S.,page 497, 23 Sup.Ct., 47 L.Ed. 775, United States v. Pitman was cited as a pertinent decision; and it was added that, when a court is opened by order of the judge, it is the duty of the marshal to attend, and that there is no reason why he should not receive his per diem. In both cases the per diems claimed were allowed. United States v. Pitman, 147 U.S.at pages 671 and 672, 13 Sup.Ct. 426, 37 L.Ed. 324, observes that attendance when court is opened under sections 583 and 672 of the Revised Statutes (U.S. Comp. St. 1901, pp. 478, 546), which is by written order of the judge, 'is put by Congress upon the same footing as if the judge were actually present, and business were actually transacted. ' This seems to be sufficient of itself; but connection with what was said at pages 670 and 671, 147 U.S.,page 426, 13 Sup.Ct., 37 L.Ed. 324, makes it positively clear that the court recognized no distinction between and adjournments under sections 583 and 672, such as we have here at bar, and the ordinary adjournments from day to day. In United States v. Aldrich, 58 F. 688, 7 C.C.A. 431, decided by this court on September 29, 1893, United States v. Pitman was applied; but the case is not of importance here, except that it shows that favorable presumptions should be made in behalf of its officers when the record states that a court was actually opened under color of some of the statutes cited, and that they were in attendance.

As we understand, the only provision now made by the United States is that under the act of March 3, 1899, neither the crier nor the bailiffs can receive per diem unless the court is actually opened by a judge on the day to which an adjournment is made by a written order, except so far as they are specially directed or otherwise designated by the court or judge to attend. The Auditor suspended the account in issue as follows:

'Suspended for the reason that the orders of the courts do not show or require that the bailiffs should be in attendance on the above dates.'

The decision of the Comptroller of March 18, 1899 (5 Comp. Dec. 583, 586), relied on by the United States, has a very uncertain sound. He thinks that statutes like that of March 3, 1899, do not refer to an order of adjournment made according to sections 583 and 672 of the Revised Statutes (U.S. Comp. St. 1901, pp. 478, 546), but only to an absence of the judge while the session is suspended awaiting the action of the jury, or for any reason not necessitating a formal adjournment to a given day. He adds:

'It means, as I understand it, an order of instruction personal to the bailiff or crier, relating to services to be rendered during the absence of the judge, and not to an order of adjournment which has been preannounced or predetermined.'

This is such a strained and imaginative construction, and so inconsistent with the simple phraseology of the statute in question, that, if the United States rested there, we would not need to give the case further consideration. In justice to the Comptroller, it should be said that seemingly his opinion, at page 587, finally left the matter on the invalidity of nunc pro tunc orders. Moreover, by an opinion of April 5, 1902 (8 Comp. Dec. 699), the same Comptroller apparently reversed his adverse expressions of March 18, 1899, so that we do not perceive any existing effective ruling of the department justifying this defense. In order, however, that we may give every possible consideration to the propositions of the United States, we return to the ruling of the Auditor, and to a substantial repetition thereof at bar to the following effect: The United States contend that 'persons' whom, as they say, 'the marshal is permitted only upon occasion to appoint,' may or may not be necessary to aid him in the discharge of his duties in court. They add that 'it is impossible to escape the conclusion that such persons may be altogether unnecessary to the discharge of the marshal's duties, and it would seem to follow that they ought not to be fastened permanently upon the government by the marshal, or by construction, unless their services are necessary; and this necessity ought to be specifically found by the court...