United States v. Stanton, 607.

• Decision Date: 10 December 1895
• Docket Number: 607.
• Citation: 70 F. 890
• Parties: UNITED STATES v. STANTON.
• Court: U.S. Court of Appeals — Second Circuit

70 F. 890

UNITED STATES v. STANTON.

No. 607.

United States Court of Appeals, Second Circuit.

December 10, 1895

This is a writ of error to the circuit court for the district of Connecticut. Lewis E. Stanton, United States attorney for said district from January 2, 1885, to April 2, 1888, duly filed his petition under the act of March 3, 1887 (chapter 359), to recover certain items in his accounts as district attorney which had been suspended or disallowed by the accounting officers, or which, although allowed, have not been paid. Issue being joined, the case came on for hearing. Some of the items claimed were allowed by the court, and others disallowed. 37 F. 252. No review of any such disallowance was sought by the petitioner, but the United States assigned error, and took out this writ to review so much of the findings and conclusions of the circuit court as allowed anything to the petitioner. Since the decision of the court, however, several of these items have been either withdrawn by the petitioner or paid by the accounting officers. It is only necessary, therefore, to discuss the items still in dispute.

Geo. F McLean, U.S. Atty., for plaintiff in error.

Lewis E. Stanton, for defendant in error.

Before WALLACE and LACOMBE, Circuit Judges.

LACOMBE Circuit Judge (after stating the facts).

1. The circuit court allowed three items of five dollars each for attendance before United States commissioner in the cases of Meech and Roath. These persons were defaulting cashiers in two Norwich banks. The days charged for were days necessarily spent in Norwich in the actual examination and investigation of the cases, partly in the office of the commissioner, but before the arrest was made. No sworn testimony of witnesses was taken before the commissioner on the days which were disallowed. The claim is made under section 824 of the United States Revised Statutes, which provides that United States attorneys shall receive 'for examination before a judge or commissioner of persons charged with crime five dollars a day for the time necessarily employed. ' A strictly literal construction of this section would confine the allowances to days when the accused person was himself examined. The section, however, has been discussed in a brief but well-considered opinion of the attorney general, June 7 1858 (9 Op.Attys.Gen. 170), and the conclusion reached that the words 'examination of the person charged' mean 'investigation of the case.' This interpretation seems to have been uniformly accepted by the treasury department, for allowances are made for attendances before commissioners when sworn testimony is taken, although the person charged with crime is not himself examined. The section does, however, distinctly require that there should be that formal accusation of crime which makes the investigation of the case by examination of witnesses before the commissioner a judicial function of that officer. No such accusation appears to have been made in this case, nor any witnesses sworn and examined before the commissioner. We are unable, therefore, to concur in the opinion of the circuit judge. The item should be disallowed.

2. The next assignment of error is to the allowance of two per diems in the cases of Sparks and Romer. There were hearings before the commissioner in those cases, respectively, on August 12th and August 15th, when the district attorney was absent on vacation. There is no assistant attorney in the district of Connecticut, and petitioner therefore employed counsel to represent him before the commissioner. They attended, and were paid five dollars each. We are of opinion that the allowance of this item was error. No compensation should be allowed for attendance of a United States attorney before a commissioner unless he is present in person, or by some person whom the statutes of the United States authorize to appear in his behalf. The relation between the attorney and the government is personal, and he cannot delegate his functions to other counsel. As this item is not brought within the provisions of section 363, 365, or 366, it should be disallowed.

3. The next assignment of error is to the allowance of $70 for an item improperly described in the original bill of particulars as '14 discontinuances before commissioners at $5. ' The bill of particulars was amended...