United States v. Puleston

• Citation: 106 F. 294
• Decision Date: 22 January 1901
• Docket Number: 872.
• Parties: UNITED STATES v. PULESTON.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

106 F. 294

UNITED STATES v. PULESTON.

No. 872.

United States Court of Appeals, Fifth Circuit

January 22, 1901

John Eagan and W. W. Howe, for the United States.

Buckler Chipley and Henry Bellinger, for defendant in error.

Before PARDEE, McCORMICK, and SHELBY, Circuit Judges.

PARDEE Circuit Judge.

This is a suit brought by the marshal of the Northern district of Florida to recover from the United States amounts disallowed by the treasury department for certain fees and expenses. The bill of particulars is made up of 14 schedules, embracing 165 items, varying in amounts from 12 cents to $46.80. It is admitted 'that all accounts claimed in this suit have been included in the current accounts of the petitioner which accounts were duly sworn to, and presented to the court, and approved thereby; all of which appears by reference to the records of this court. ' The case appears to have been thoroughly and exhaustively tried before the district court, and the trial judge has examined and considered every item with apparently the greatest care and patience, and has given his decision upon each, supported by reason and argument; all of which is found in the elaborate opinions printed in the transcript, and reported in 85 F 570, and 88 F. 970 et seq. His judgment was rendered for the plaintiff in the sum of $594.80, with interest until paid together with $31.15 costs incurred.

In U.S. v. Jones, 134 U.S. 483, 10 Sup.Ct. 615, 33 L.Ed 1007, it was held: 'The approval of a commissioner's account by a circuit court of the United States is prima facie evidence of its correctness, and, in the absence of clear and unequivocal proof of mistake on the part of the court, should be conclusive.'

If this be the rule on the first examination and approval, no less stringent rule should be applied to the approval of the court after a contradictory examination and hearing, and, as we have carefully considered the case in this court, following with patience throughout the involved details, and fully considering the law involved, and found no clear and unequivocal proof of mistake, we think we are fully warranted in agreeing with the trial judge in all his allowances and conclusions, except as to items 11, 13, 15, 16, and 18 of Schedule A, claiming in the aggregate $132.40 for mileage in transporting prisoners arrested under commissioner's warrant to other than the nearest commissioner.

The act making appropriations for sundry civil expenses of the government for the fiscal year 1894 and for other purposes, approved March 3, 1893 (27 Stat. 609), contains the following:

'For fees of United States commissioners and justices of the peace acting as United States commissioners, one hundred thousand dollars. And hereafter no part of any money appropriated to pay any fees to the United States commissioners, marshals, or clerks shall be used for any warrant issued or arrest made, or other fees in prosecutions under the internal revenue laws, unless said fees have been taxed against and collected from the defendant, or unless the prosecution has been commenced upon a sworn complaint setting forth the facts constituting the offense and alleging them to be within the personal knowledge of the affiant, or upon a sworn complaint by a United States district attorney, collector or deputy collector of internal revenue or revenue agent, setting forth the facts upon information and belief, and approved either before or after such arrest by a circuit or district judge or the attorney of the United States in the district where the offense is alleged to have been committed or the indictment is found; provided, it shall be the duty of the marshal, his deputy, or other officer who may arrest a person charged with any crime or offense, to take the defendant before the commissioner or the nearest judicial officer having jurisdiction under existing laws for a hearing, commitment or taking bail for trial, and the officer or magistrate issuing the warrant shall attach thereto a certified copy of the complaint; and upon the arrest of the accused, the return of the warrant, with a copy of the complaint attached, shall confer jurisdiction upon such officer as fully as if the complaint had originally been made before him, and no mileage shall be allowed any officer violating the provisions hereof.'

Substantially the same provision was enacted in the act making appropriations for the sundry civil expenses of the government for the fiscal year ending June 30, 1895, and approved August 18, 1894 (28 Stat. 416). We find no repetition of these provisions in any subsequent appropriation act.

The question presented is whether this legislation is general, furnishing rules for the general government of the clerks, commissioners, and marshals, or was particularly restricted to the expenses to be paid under the respective appropriation acts. One construction gives only trivial effect to the enactment, and the other gives it full effect.

The trial judge considers the language of the statute as a proviso, and quotes U.S. v. Ewing, 140 U.S. 148, 11 Sup.Ct. 743, 35 L.Ed. 388, where the question under consideration was as to whether docket fees should be allowed, as follows:

'In the case of Minis v. U.S., 15 Pet. 423, 10 L.Ed. 791, it is said by Mr. Justice Story (page 445, 15 Pet.,and page 799, 10 L.Ed.): 'It would be somewhat unusual to find ingrafted upon an act making special and temporary appropriations any provision which was to have a general and permanent application to all future appropriations. Nor ought such an intention on the part of the legislature to be presumed, unless it is expressed in the most clear and positive terms, and where the language admits of no other reasonable interpretation. The office of a proviso, generally, is either to except something from the enacting clause, or to qualify or restrain its generality, or

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