United States v. Perry

• Decision Date: 23 May 1892
• Docket Number: 56.
• Parties: UNITED STATES v. PERRY, Dist. Atty.
• Court: U.S. Court of Appeals — Eighth Circuit

50 F. 743

UNITED STATES v. PERRY, Dist. Atty.

No. 56.

United States Court of Appeals, Eighth Circuit.

May 23, 1892

J. W Ady, for the United States.

W. C Perry, W. H. Rossington, and Chas. Blood Smith, for appellee.

Before CALDWELL and SANBORN, Circuit Judges, and SHIRAS, District judge.

SANBORN Circuit Judge.

William C. Perry, the appellee, was United States district attorney for the district of Kansas from July 14, 1885, until November 9, 1889, and during all this time resided with his family at Ft. Scott, in that district. He brought this action in the United States circuit court for that district to recover mileage, fees, and emoluments under the provisions of chapter 359, 24 St.at Large, p. 505, and a judgment was rendered in his favor below, from which the United States appeals. In the performance of his official duties he traveled from his place of abode to the various places of holding the United States courts, and to the various places of the examinations, before a judge or commissioner, of persons charged with crime, by the usual, most convenient, and only practicable routes, but these routes were not the shortest routes. He was paid his mileage for this travel by the shortest routes, and the court below held that he was entitled to recover the difference between the amount of the mileage reckoned on the basis of the shortest routes and the amount reckoned on the basis of the only practicable and most convenient routes. This holding of the court is assigned for error. The appellee, in the performance of his official duties, necessarily traveled at various times from his place of abode to the places of examinations, before a judge or commissioner, of persons charges with crime. His mileage for this travel and his per diem for attendance were disallowed by the accounting officers of the government, but the court below held he was entitled to recover them, and this is the second error complained of. Mr. Perry necessarily traveled at various times from his place of abode to Topeka, Kan., to attend such examinations before the United States commissioners, and the accounting officers of the United States disallowed this mileage because Topeka was the official headquarters of the district attorney, but the court below held he was entitled to recover it, and this ruling is the third error assigned. Mr. Perry charged in his account the five dollars per diem allowed by section 824, Rev. St. U.S., for 11 days, between October 15, 1888, and September 16, 1889, each of which transpired during the session of the United States court, and was a Sunday or legal holiday, and on each of which days he was necessarily away from his place of abode, and in attendance upon that court in his district. The court below held that he was entitled to recover $55 on this account, and this holding is the only other error of which complaint is made.

The statute itself disposes of the first three assigned. So far as it is material to the questions presented by these assignments, it reads:

'Sec. 823. The following and no other compensation shall be taxed and allowed to attorneys, solicitors, and proctors in the courts of the United States, to district attorneys, clerks of the circuit and district courts. * * * Sec. 824. * * * For examination by a district attorney, before a judge or commissioner of persons charged with crime, five dollars a day for the time necessarily employed. * * * For traveling from the place of his abode to the place of holding any court of the United States in his district, or to the place of any examination before a judge or commissioner of a person charges with crime, ten cents a mile for going, and ten cents a mile for returning.'

1. Under this statute it is not only the privilege, but the duty, of the district attorney to travel by the most convenient and practicable routes in the discharge of his official duties, although such routes are not the shortest routes, and when he has so traveled he is entitled to ten cents per mile for going, and ten cents a mile for returning, over the routes he has actually traveled. His compensation is not limited to mileage on shorter, but impracticable and inconvenient, routes he does not travel. Any other rule would work great detriment to the public service. The shortest traveled route between two towns is often so poorly supplied with means of quick and rapid transit that to follow it, in the exigencies of the public service, would so delay the officer that his services would become useless. The most convenient and practical route of travel is the usual route of travel, and it is such because business and professional men, who are looking with keen vision to their own interests and to the accomplishment of the largest results in the shortest space of time, universally take that route, and thus make it the usual route. If the district attorney in his service of the government selects the routes of travel chose by the shrewd travelers who visit the towns and cities of this land in the interest of private gain; if he selects, as the record in this case proves he did, the usual, most convenient, and practicable routes, in the performance of his official duties, and is paid under the statute for the miles he actually travels on such routes,-- his time and ability will thus be made most useful to the government, and the letter and spirit of the statute will be complied with.

2. A district attorney is entitled to his mileage from his place of abode to the place of any examination before a commissioner of a person charged with crime, and to his per diem for the examination of such person before such commissioner in any case where, in his judgment, it was necessary for him to attend, and he did actually attend, such examination. No authority or argument is presented in support of the claim that his mileage and per diem were improperly allowed by the judge below. In the assignment of error it is stated that this allowance should not have been made 'until the comptroller's office was satisfied that the nature and importance of the examinations demanded the presence of the district attorney. ' The district attorney is charged with the duty of attending these examinations, and conducting them on the part of the United States, whenever the attendance of an attorney is needed. When a person is charged with crime before a judge or commissioner, he must determine whether his presence is necessary at the examination, and act upon his own judgment. There is neither law nor reason for the suggestion that his compensation is dependent upon the opinion of the comptroller on the question of the necessity of his attendance. The statute is plain and unequivocal, and it has been held not only that it entitles him to the per diem compensation while he is actually engaged in the examination before the commissioner, but also for his time while is he necessarily engaged in the investigation of an offense in co-operation with the commissioner before the arrest is actually made. Stanton v. U.S., 37 F. 252.

3. When the district attorney actually and necessarily travels from the place of his abode to the place of an examination before a commissioner of a person charged with crime, in the discharge of his official duty, he is entitled to mileage for...