United States v. Rand, 24.

• Decision Date: 29 November 1892
• Docket Number: 24.
• Citation: 53 F. 348
• Parties: UNITED STATES v. RAND.
• Court: U.S. Court of Appeals — First Circuit

53 F. 348

UNITED STATES v. RAND.

No. 24.

United States Court of Appeals, First Circuit.

November 29, 1892

For opinions rendered on previous applications of petitioner involving the same or similar questions, see 36 F. 671, and 38 F. 665.

Act March 3, 1887, gives the United States circuit and district courts concurrent jurisdiction of claims against the United States, with a proviso that nothing in this section giving such jurisdiction 'shall be construed as giving to either of the courts herein mentioned jurisdiction to hear and determine * * * claims which have been heretofore rejected or reported on adversely by any court, department, or commission authorized to hear and determine the same.'

Rev St. Sec. 191, provides that 'the balances which may from time to time be * * * certified to the heads of departments by the * * * comptrollers of the treasury, upon the settlement of public accounts, shall not be subject to be changed or modified by the heads of departments, but shall be conclusive upon the executive branch of the government, and be subject to revision only by congress or the proper courts ' Section 269 declares that it shall be the duty of the first comptroller of the treasury 'to superintend the adjustment and preservation of the public accounts subject to his revision.'

Rev St. Sec. 847, relating to commissioners' fees, fixes no special fee for taking a recognizance, but provides 'for issuing any warrant or writ, and for any other service, the same compensation as is allowed to clerks for like services.'

Act Aug. 4, 1886, entitled 'An act making appropriation to supply deficiencies in the appropriations for the fiscal year ending June 30, 1886, and for prior years, and for other purposes,' provides that certain sums be 'appropriated to supply deficiencies in the appropriation for the fiscal year 1886, and for other objects, hereinafter stated. * * * For fees of commissioners, * * * $50,000 provided, that for issuing any warrant or writ, or for other necessary service, commissioners may be paid the same compensation as is allowed to clerks for like services, but they shall not be entitled to any docket fees.'

Rev. St. Sec. 1014, provides: 'For any crime or offense against the United States, the offender may * * * by any commissioner of a circuit court to take bail * * * or other magistrate, of any state where he may be found, and agreeably to the usual mode of process against offenders in such state, and at the expense of the United States, be arrested and imprisoned, or bailed, as the case may be, for trial before such court of the United States as by law has cognizance of the offense.'

Rev. St. Me. c. 133, Sec. 10, relating to examination of offenders, provides: 'A magistrate may adjourn an examination before him, from time to time, for not more than ten days at a time, and the accused may recognize with sufficient sureties for his appearance before him at the time of adjournment; but if no sufficient sureties are offered, or the offense is not bailable, the accused shall be committed to jail by an order of the magistrate, stating briefly the offense with which he is charged, and that he is committed for examination for a future day therein named; and, on the day appointed, he may be brought before such magistrate, by his verbal order to the officer committing him, or by written order to any other person.'

The following opinion was delivered in the district court on November 28, 1891:

'WEBB, District Judge.

This petition is for the allowance of fees as commissioner of the circuit court, which have been rejected by the comptroller of the treasury. As originally presented, the claim amounted to a total of $409.85. Subsequent amendments, made under recent decisions of the supreme court in respect to fees of various officers, have stricken out items amounting to $162.75, leaving only the sum of $247.10 to be passed upon by this court. The case is heard on demurrer, and the contention by the United States is that, though the services have all been performed, the petitioner is not legally authorized to charge them, or to be paid for his work.

'Though the items are numerous, they belong to only a few classes. A portion of these items were included in the proceeding by this same petitioner in 1888, and was then, upon the authority of Bliss v. U.S., 34 F. 781, held not to be within the jurisdiction of this court. Rand v. U.S., 36 F. 671. Such disposition of the claim for supposed want of jurisdiction to pass upon its merits does not operate as a bar to this petition. The former ruling against the jurisdiction, because the demand had been rejected by the comptroller prior to March 3, 1887, must be regarded as erroneous, under the decision of the circuit court in this circuit and district in Harmon v. U.S., 43 F. 560.

'In this portion of the petition are charged docket fees aggregating $17 prior to August, 1886. The supreme court has declared that the proviso in the deficiency appropriation act of August 4, 1886, (24 St.p. 274,) was general legislation, intended as an amendment of Rev. St. Sec. 847, and not a mere restriction upon the use of the moneys appropriated by that act. U.S. v. Ewing, 140 U.S. 142, 11 S.Ct. 743. The enactment was then prospective in its operation, and had no retroactive effect upon docket fees before earned, and upon the authority of U.S. v. Wallace, 116 U.S. 398, 6 S.Ct. 408, the petitioner is allowed the $17 so charged.

'In the petition so amended no other docket fees are claimed. The items are: (1) Recognizances of parties, from day to day, and final; (2) complaints; (3) per diem allowances; (4)...